ASJ18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 852
•10 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASJ18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 852
File number(s): SYG 421 of 2018 Judgment of: JUDGE LAING Date of judgment: 10 September 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA fell into the species of error considered in cases such as ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 and DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 – where demeanour had been important to the Delegate’s favourable credibility assessment – where the IAA departed from that assessment by reference to evidence including documentary evidence of the applicant’s appearance – where the IAA did so whilst lacking the Delegate’s advantage of seeing the applicant give his evidence in person – application succeeds Legislation: Migration Act 1958 (Cth) s 473DD Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439
BFR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 87
CAF19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 937
DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134
FUZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 191
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 27 August 2024 Place: Sydney Solicitor for the Applicant: Mr S Hodges of Hodges Legal Solicitor for the First Respondent: Mr M Gao of HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 421 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASJ18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
10 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 23 January 2018.
2.A writ of mandamus issue directed to the second respondent requiring it to determine the review of the decision of a delegate of the first respondent dated 6 July 2017 according to law.
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 LAING:
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a Sri Lankan national who arrived in Australia as an unauthorised maritime arrival.
On 8 June 2016, the applicant applied for a protection visa. On 6 July 2017, the Delegate refused the application. The matter was then referred to the IAA for review.
On 23 January 2018, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA observed that submissions had been provided by the applicant’s representative, including five photographs (one of which was an enlargement of part of another photograph) (at [5]). In considering whether the requirements of s 473DD of the Migration Act 1958 (Cth) (Act) needed to be met, the IAA reasoned:
8.The applicant’s previous representative submitted that the photographs were not new information because the delegate sighted them during the SHEV interview. I have listened to the SHEV interview and the delegate did acknowledge sighting one photograph of the applicant in a military uniform. The applicant told the delegate that the photograph depicted him attending the funeral of [an identified person] in 2008. On 12 December 2017 I requested from the Department of Immigration and Border Protection a copy of the photograph that was before the delegate. The Department of Immigration and Border Protection responded that the delegate did not copy the photograph after sighting it. The four photographs provided to the IAA all appear to have been taken at the same time and at the same event. The photographs include other people in military uniforms in the background. I do not know which of the four photographs was sighted by the delegate or, as the applicant’s previous representative submits, whether all four photographs were tendered at the SHEV interview and the delegate described one photograph for the benefit of the tape. Given those uncertainties, I accept that all four photographs were before the delegate before he made his decision and are not new information.
The IAA considered the applicant’s claims as follows at [10]-[11] of its decision:
10.During his arrival interview the applicant said his younger brother and father were killed and he and his older brother were injured in a shell explosion [in] 2009. He denied receiving training in preparation for conflict or participating in armed conflict. He said that, in 2007, he attended a six months course provided by [an organisation] in [an area] learning about electrical wiring and that, from 2008 to 2012, he was self-employed as a tractor driver and drove a van for a man called [redacted] in [identified] areas. However in the applicant’s statutory declaration he stated that he was a trained combatant in the LTTE from 2005 until he was injured in 2009. During the SHEV interview the applicant said that he worked as [an identified person’s] bodyguard from 2006 until his death in 2008 and obtained the rank of Major. The role involved fighting against the SLA and directing 30 fighters to protect [the identified person] and other leaders. He said that on [a date in] 2009 he was injured whilst fighting in combat. He was standing outside and going to seek protection with a few friends when a shell exploded. The delegate put to the applicant some of the inconsistencies between the information he provided during his arrival interview and the information he provided during his SHEV interview. The applicant responded that when he arrived in Australia he did not know what he should and should not say. However, his lawyer told him that he must tell the truth and so he did during the SHEV interview. I accept that the applicant could, in the absence of legal advice, be hesitant to provide full and frank details about his involvement in the LTTE during his arrival interview. However I do not accept the applicant would fabricate details of attending a six month course in 2007 for that reason. The most plausible reason for the applicant providing that information is that it was true. I therefore find that the applicant was attending a six month course in [an area] in 2007.
11.During the applicant’s arrival interview he said that, on [a date in] 2010, the SLA detained him for seven days in [an area] because of his links to the LTTE. He was beaten, threatened and interrogated and released when his mother informed the SLA that her son had nothing to do with the LTTE. The applicant said that – because he lived in a former LTTE area - he cannot move freely around Sri Lanka for fear of being stopped and interrogated on suspicion of links with the LTTE. When the applicant was asked if there was any other major reason for leaving Sri Lanka, he replied that he was the only one to support his mother and brother. However the applicant’s statutory declaration made no mention of being detained for seven days in 2010. It stated that the applicant was detained and beaten for three hours in 2005 and the SLA, CID and SLP visited him on a regular basis while he was in hospital and at home from 2011 because of his suspected links to the LTTE. It stated that the applicant was still in hospital in 2010. During the applicant’s SHEV interview the applicant stated that he was in hospital for one month. The SLA visiting him in hospital and continued to visit him after he left questioning him about his links to the LTTE. Sometimes it would be once a month and sometimes it would be once a week. The frequent visits led him to being isolated by other villagers because of fear. He said that shortly before he left Sri Lanka, the CID raided his home and confiscated all his documents including his passport and NID. The CID still retains those documents. His mother told him that the CID visited his house in January 2017 looking for him. He said the SLA/CID will kill him if he returned to Sri Lanka.
In relation to the photographs submitted by the applicant, the IAA reasoned (at [12]):
12.The applicant’s representative submitted that the photographs of the applicant in a military uniform indicated that he was not an ordinary soldier or low level cadre. He submitted that the applicant is clearly distinguishable in the photographs taken during [an identified person’s] funeral and it was reasonable to infer that soldiers assigned to guard the casket and perform a guard of honour are unlikely to be ordinary soldiers or low level cadres. He submitted that it was reasonable to conclude that, due to the level of the applicant’s involvement with the LTTE, he would face serious harm if he returned to Sri Lanka and that conclusion was corroborated with photographic evidence. I have four photographs of a person in a military uniform wearing a military cap before me. Those photographs are purportedly of the applicant taken in 2008 at a funeral. I also have four photographs of the applicant taken at various times (2010, 2011, 2012 and 2016) after the applicant sustained facial injuries. Those injuries resulted in significant scarring and distortions to the applicant’s face. I accept that the four photographs of people in military uniforms were taken at a funeral. However, based on the photographic evidence before me, I do not accept that the applicant is clearly distinguishable in those photographs. I am therefore not satisfied that the four photographs of the person in the military uniform and cap attending a funeral is the applicant.
The IAA then made the following findings regarding the applicant’s claims (at [14]-[15]):
14.The applicant has given inconsistent information about when and for how long he was detained/questioned by the SLA/CID/SLP, whether he was or was not a combatant for the LTTE between 2005 to 2009, whether he studied between 2005 and 2009, what he was doing when he sustained his injuries and the length of time he remained in hospital. Given these inconsistencies I have serious doubts about the applicant’s overall credibility. I accept that the applicant is a national of Sri Lanka and a Hindu Tamil. I accept the applicant was born in [a specified area on a specified date] and that there was a strong LTTE presence in that area. I accept that, given the applicant’s profile as a young Tamil male, the SLA/CID/SLP would have questioned, detained and beaten the applicant on suspicion of links with the LTTE during the war from time to time until May 2009. I accept that, in March 2009, the applicant was injured by a shell explosion, that he required hospitalisation and that he has visual facial scarring.
15.I have found that the applicant was attending a six month course in [an area] in 2007. That finding, in the context of inconsistent and vague evidence, leads me to conclude that I am not satisfied the applicant was a trained combatant for the LTTE from 2005 to 2009, that he was a bodyguard for [an identified person] from 2006 to 2008, that he obtained the rank of Major, that he was involved in fighting against the SLA and directed 30 fighters to protect [the identified person] and other leaders or that he was fighting the SLA as an LTTE combatant when his injuries were sustained. Likewise, I do not accept that people in his area were aware of his involvement with the LTTE, that the applicant was detained for seven days in 2010, that, after May 2009, he was frequently visited and questioned by the SLA/SLP/CID on suspicion of links with the LTTE, that he was isolated by other villages because of the frequent visits to his home from SLA/CID, that the CID confiscated his documents – including his passport – or that, after the applicant left Sri Lanka, the CID continued to visit his home looking for him.
The IAA accepted that the applicant was Tamil and from a Northern Province that had been under LTTE control during the civil war (at [18]).
The IAA accepted that the applicant sustained visible facial scarring. However, having regard to country information, the IAA was not satisfied that the applicant’s scarring and profile would foster any adverse interest upon his return to Sri Lanka (at [21]). The IAA accordingly found that the applicant would not face a real chance of any harm from the Sri Lankan authorities, the Sri Lankan Army (SLA), the “Central Intelligence Department” (CID) or the Sri Lankan police (SLP) (at [22]).
The IAA accepted that the applicant may be questioned and charged under the Immigrants and Emigrants Act on account of his illegal departure. The IAA accepted that due to the manner of his return, it may be inferred that he sought protection in Australia. However, having regard to country information and what it had found regarding the applicant’s profile, the IAA was not satisfied that the applicant would face a real chance of harm as a returning asylum seeker (at [23]).
The IAA accepted that the applicant may be detained for a limited period and incur a fine. The IAA did not consider that such penalties or processes would be discriminatory. The IAA did not accept that they would amount to serious harm or persecution. Nor did the IAA accept that the results of this would meet the definition of significant harm (at [24]-[26] and [32]).
Having regard to the above, the IAA was not satisfied that the applicant met the criteria for a protection visa. Accordingly, the IAA affirmed the Delegate’s decision (at [17]-[34]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 16 February 2018. The applicant ultimately relied upon an amended application containing the following ground:
That the process by which the Authority reached its decision was unreasonable.
PARTICULARS
(i) The delegate interviewed the Applicant on 6 July 2017;
(ii)The Applicant was represented by an agent who attended by telephone;
(iii)There is confusion in the materials as to a photograph or up to 4 photographs which were tendered by the Applicant during the interview with the delegate.
(iv)The most likely conclusion is that the Applicant tendered several photographs;
(v)The photographs showed persons in uniform apparently attending a funeral;
(vi) The Applicant identified himself in at least one photograph.
(vii)The delegate found that the applicant was consistent and credible when asserting that he was a combat member of the LTTE and had reached the rank of major.
(viii)The delegate’s decision does not refer to the photographs. It is accepted by the respondents that at least one photograph was before the delegate.
(ix)The Authority did not accept the delegate’s findings as to the Applicant’s credit and came to almost contrary findings. That is the Applicant did not have a combat role in the LTTE and did not attain the rank of Major.
(x)The Authority found that the Applicant’s evidence was inconsistent and vague.
(xi) The Authority did not interview the applicant.
(xii)The Authority did not give any consideration to interviewing the applicant.
(As per the original)
In written submissions, the applicant placed heavy reliance upon ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 (ABT17).
In ABT17, the IAA was found to have acted unreasonably in not undertaking its own assessment of an applicant’s demeanour through an interview when assessing the applicant’s credibility. This was in circumstances where the IAA departed from the Delegate’s favourable assessment of credibility based upon its own assessment of the manner in which evidence had been given in an audio recording of the applicant’s interview. In that case, Kiefel CJ, Bell J, Gageler J (as his Honour was) and Keane J reasoned (at [22]-[25]):
22.The mere existence of an informational gap will not necessarily result in the Authority being "disadvantaged in comparison with the delegate"[39]. That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
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[40].
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.
Another matter in which the assessment of demeanour was significant is the case of DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134. In that case, the IAA was aware that the Delegate had accepted the applicant’s account through reliance upon demeanour at interview. The IAA subsequently rejected the applicant’s credibility without considering inviting the applicant to an interview in order to undertake its own assessment of his demeanour. Instead, the IAA relied upon inconsistencies the Delegate had indicated would not be given substantial weight. This approach by the IAA was found to have been legally unreasonable. At [46]-[47], Griffiths and Steward JJ reasoned:
45.For the following reasons, we consider that the IAA’s failure to consider whether or not to exercise its power under s 473DC in respect of either the issue of the sexual assaults or the relevant inconsistencies was legally unreasonable because, in the circumstances, the failure was unreasonable or plainly unjust (see Li at [76] per Hayne, Kiefel and Bell JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [10]- [11] per Allsop CJ, [76] per Griffiths J and at [101] per Wigney J). It is convenient to deal with each of those matters in turn.
46. As to the sexual assaults:
(1)It would have been evident to the IAA from the extracts from the transcript of the appellant’s interview with the delegate (see [14] above) that the delegate’s acceptance of the appellant’s claim that he had been tortured and sexually assaulted by Sri Lankan officials on at least two occasions (as stated in the decision record), was based primarily on the delegate’s assessment of the appellant’s demeanour and credibility when this matter was discussed in the course of the interview with the delegate.
(2)The IAA must have been aware of the delegate’s positive assessment of the appellant’s demeanour because the IAA member stated at [20] of his reasons for decision that he had listened to the recording of that interview.
(3)In those circumstances, if the IAA was minded to come to a different determination on the central question whether it was satisfied that the sexual assaults had occurred, unless there was available to the IAA a sufficient independent evidentiary basis to support such a determination without the IAA itself inviting the appellant to attend for an interview and conduct its own assessment of his demeanour, it was legally unreasonable for the IAA to fail to consider whether or not it should exercise its powers under s 473DC.
(4)As the plurality observed in Fox v Percy [2003] HCA 22; 214 CLR 118 at [30]-[31], demeanour is not the only aspect of a witness’s evidence which may lead to credibility findings. Such findings might result from inferences drawn from probative evidence or material. This is not the case here. That is because part of the IAA’s reasons for its adverse finding on the appellant’s credibility, as summarised in [35] of its reasons for decision, was based on the cumulative effect of inconsistencies and implausibilities in the appellant’s evidence, as set out by the IAA in [22] to [34] inclusively. Those inconsistencies, together with the other matters referred to in [35] of the IAA’s decision record were viewed as undermining the appellant’s credibility. That adverse finding then flowed through to the IAA’s rejection in [36] of its decision record of the appellant’s claims to have been the victim of sexual assault.
(5)For reasons which will shortly be stated, some of the inconsistencies as found by the IAA were at odds with the delegate’s separate statement to the appellant and his representative that those particular inconsistencies were, in effect, inconsequential. Consistently with what they were told by the delegate at the end of the interview, the delegate placed no weight on them. As will shortly be explained, in the particular circumstances here, while it was open to the IAA to come to a different view on the significance of those and other inconsistencies, in the case of the inconsistencies which the delegate viewed as inconsequential (the relevant inconsistencies), it was legally unreasonable for the IAA to fail to consider whether or not to exercise its power under s 473DC in relation to those relevant inconsistencies…
There have been a number of cases since DPI17 and ABT17 in which it has been argued that demeanour has played a particular role in either the Delegate’s or the IAA’s assessment, such that it was unreasonable for the IAA not to have invited (or considered inviting) an applicant to an interview. The outcomes in a number of those cases depended, to at least some extent, upon whether the Delegate or IAA relied upon the manner or physical manifestation of the evidence given, as distinct from its content: see for example CAF19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 937 (Cheeseman J) (CAF19); FUZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 191 (Judge Blake); and BFR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 87 (Judge Ladhams).
However, ultimately cases in which legal unreasonableness is alleged must turn on their own particular facts.
In the present case, the Minister accepted that the Delegate had the benefit of a face-to-face interview with the applicant, whereas the IAA only had access to an audio recording of that interview.
It may also be accepted that the Delegate accepted the credibility of certain claims that were central to the applicant’s case. The Delegate’s reasoning in this regard included the following (at CB 280-281):
I accept the applicant was a member of the LTTE. He was consistent and credible in his relaying of the events as they occurred to him. He freely gave his LTTE unit number ([number redacted]) and his rank of major. I accept that he was severely injured during the war…
I accept that he was questioned and beaten by the Sri Lankan army in 2005. The applicant was credible in his narrative…
I accept that the applicant has a severe facial injury that he suffered during the war in 2009…
I accept… [t]he applicant was severely scarred during a shelling attack while he was a member of the LTTE.
The IAA departed from the Delegate’s credibility assessment. The relevant parts of the IAA’s reasoning are set out above.
The applicant observed that the IAA’s departure from the Delegate’s credibility assessment was on matters that were central to his claims. This may be accepted. The Delegate had been prepared to accept that the applicant had the rank of Major in the LTTE. This was not accepted by the IAA. The IAA rejected that the applicant had the position or role claimed with the LTTE on credibility grounds. This informed the IAA’s rejection that the applicant would face a real risk of harm by reference to his profile.
I accept the Minister’s submission that the fact the IAA departed from the Delegate’s credibility assessment in an important respect is not sufficient (in and of itself) to demonstrate legal unreasonableness. However, this was not the only feature of the case relied upon by the applicant.
Relying upon ABT17, the applicant emphasised the importance of demeanour in the present case. The applicant observed that the Delegate had been persuaded regarding the applicant’s role in a context where the Delegate had the benefit of a face-to-face interview. The Delegate had seen the applicant and his “severe facial scarring”, which the Delegate accepted had been sustained whilst the applicant was a member of the LTTE. As the applicant emphasised at the hearing before the Court, the Delegate also appears to have had the benefit of the visual presentation of the applicant speaking to the photographs said to represent him in military uniform and at a funeral of an identified person (CB 309-314). These matters were relied upon by the applicant as corroborating his claimed role and importance within the LTTE. The IAA’s inability to assess these matters, it was submitted, constituted an important “informational gap”.
There is force to these submissions. As in DPI17, the manner in which the applicant gave his evidence at interview appears to have been important to the conclusions reached by the Delegate. I am unable to accept the Minister’s submissions to the contrary. The Delegate’s reliance upon the manner in which the applicant gave evidence (as distinct from its content) is apparent from the Delegate’s reliance upon an assessment that the applicant had appeared “credible in his relaying of the events as they occurred to him” at the interview, and had given certain information “freely” in relation to his claims. Such matters went to the manner or presentation of the evidence. They did not go simply to its content.
Further, as the applicant submitted, the Delegate had the advantage of viewing the applicant and his interaction with the photographs. Although the Delegate did not expressly rely upon the photographs as corroborative evidence, this was in a context where the Delegate had accepted his claimed role of Major within the LTTE. The IAA did not.
The IAA rejected the corroborative force of the photographs. This was on the basis that the IAA was “not satisfied that the four photographs of the person in the military uniform and cap attending a funeral [was] the applicant”. The IAA reached this conclusion by comparing the limited other photographic material it possessed regarding the applicant’s physical appearance on file. That material had not been provided in response to any concern that had been raised regarding the applicant being the person in the photographs.
The IAA reached its conclusion knowing that it did not have, as the Delegate had, the benefit of actually seeing the applicant in person and assessing the physical aspects of his evidence (including the physical aspects of his appearance). Notwithstanding this, the IAA departed from the Delegate’s favourable credibility assessment by rejecting evidence that had not been doubted in the Delegate’s decision. This was notwithstanding the Delegate’s advantages in seeing the applicant in relation to the photographs and the presentation of his evidence. It was in circumstances where the IAA would have been aware of the Delegate’s express reliance upon the applicant’s demeanour, or the manner in which his evidence had been given.
I accept, as was submitted by the Minister, that the IAA did not (as in ABT17) clearly rely upon how the applicant sounded in a recording of the protection visa interview. Although the IAA referred at [15] to the applicant’s evidence being “vague”, this word is capable of being interpreted in different ways. It is possible that it referred to the content of the applicant’s evidence, as distinct from the manner in which it was given (cf. CAF19 at [23]).
I also accept that some of the matters relied upon by the IAA were clearly objective. This included the IAA’s finding that the applicant had given inconsistent evidence as between his “arrival interview” (which appears to have actually been an entry interview) and his subsequent evidence. Although the applicant referred generally to the caution that needs to attend reliance upon an early interview (presumably thinking of cases such as MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 and its successors), he made no attempt to develop this submission when invited to do so at the hearing before the Court. It has not been demonstrated that it was relevantly closed to the IAA to have relied upon the inconsistencies that it identified in the manner that it did.
In any event, the fact that the IAA relied upon evidence other than demeanour is not determinative of the question. The question is whether, in all of the circumstances of this case, the IAA’s decision was affected by the species of error considered in cases such as ABT17 and DPI17.
For the reasons given above, I am persuaded that this is so. This is having regard to the particular role that demeanour and physical appearance played in the present case. It is understanding the necessary stringency of the test for legal unreasonableness, and the particular statutory context in which the IAA made its decision. However, it is appreciating the force of the authorities indicating that such boundaries may be crossed where, as here, the making of the decision without seeking information capable of addressing a particular “informational gap” appears to be lacking in an evident and intelligible justification or to have been otherwise legally unreasonable.
CONCLUSION
For the above reasons, the application before the Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 10 September 2024
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