AVQ18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1122
•5 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AVQ18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1122
File number(s): SYG 494 of 2018 Judgment of: JUDGE LAING Date of judgment: 5 November 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA unreasonably failed to exercise, or consider exercising, power under s 473DC of the Migration Act 1958 (Cth) – whether the IAA’s reasoning was otherwise open on the material before it – application succeeds Legislation: Migration Act 1958 (Cth) s 473DC Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439
CVP17 v Minister for Immigration and Border Protection [2021] FCA 1502
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRK18 [2021] FCA 1070
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217
Division: General Number of paragraphs: 58 Date of hearing: 22 August 2024 Place: Sydney Solicitor for the Applicant: Mr R T Selliah of Rasan T. Selliah & Associates Solicitor for the First Respondent: Mr S Knuckey of Mills Oakley Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 494 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVQ18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
5 NOVEMBER 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision dated 16 February 2018 in file IAA17/02642.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter 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:
Before the Court is an application for judicial review of a decision made by 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 citizen of Sri Lanka who arrived in Australia in 2013 as an unauthorised maritime arrival.
On 5 December 2016, the applicant applied for a protection visa.
The Delegate refused the application on 5 May 2017. The matter was subsequently referred to the IAA for review.
On 16 February 2018, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA accepted that:
(a)the applicant was a national of Sri Lanka, of Tamil ethnicity and Hindu faith, from an area in the Northern Province of Sri Lanka (at [7]);
(b)the applicant was forced to undergo a month’s training with the Liberation Tigers of Tamil Eelam (LTTE) in 2005, escaped from the camp and returned home (at [11]);
(c)several of his friends who underwent compulsory training were shot and killed by the Sri Lankan Army (SLA) (at [11]);
(d)the applicant and his aunt travelled to an area and paid the Eelam People's Democratic Party (EPDP) for a pass to live in the area (at [12]);
(e)while the applicant lived in the area, the authorities frequently conducted raids and checks and, on an occasion, went to his lodge to make enquiries about him during which he could have been arrested. However, the IAA found that this was part of routine monitoring and surveillance activities at the time and that the authorities were satisfied after their inquiries that the applicant was not a person of interest (at [13]-[15]);
(f)the applicant was arrested and detained for three days by the Criminal Investigation Department (CID), physically mistreated, and sentenced to a period of imprisonment for a previous offence (at [19]);
(g)the applicant was required by police to report monthly following his sentence, given that he was a Tamil who had served time in prison. However, the IAA found that this obligation ceased after the third time he reported (at [25]);
(h)the applicant was detained again in 2009 but was released within 24 hours. The IAA found that this was attributable to the routine monitoring and harassment to which Tamils in the area were subjected at the time (at [28] and [30]); and
(i)the applicant took part in several Remembrance Day and Martyr’s Day activities in Australia, and may attend similar activities in Sri Lanka (at [38]-[39]).
The IAA did not accept that:
(a)the CID went to the applicant’s home in 2006 to look for him while he was at work, and, as a result, he decided to stay at his sister’s house (at [11]);
(b)the applicant was afraid to approach the EPDP for the pass to live in an area in case they suspected he was an LTTE cadre (at [12]);
(c)enquiries made by the SLA towards the applicant at the lodge were directed specifically towards him because he was personally under suspicion for any reason (at [15]);
(d)“court documents” provided by the applicant ought to be given weight, as the IAA could not be satisfied the translations were accurate and there appeared to be discrepancies between copies of the translations, the originals, and the applicant’s claims (at [18]);
(e)the applicant was released on bail from prison, that one of the conditions for bail required his regular reporting to the authorities, and that the condition was breached because the applicant ceased reporting (at [20]-[24]);
(f)the applicant breached any obligation to continue reporting to police (at [25]);
(g)the applicant moved between friends’ houses because he was afraid the police would come after him (at [25]);
(h)the applicant was detained pursuant to the Prevention of Terrorism Act (PTA) because the authorities strongly believed that he was a LTTE cadre (at [26]-[27]);
(i)the case against the applicant was ongoing or that the applicant was at risk of harm for breaching bail conditions (at [28]);
(j)the applicant was at risk of imprisonment for having breached bail conditions or because of his previous offence (at [28]);
(k)the CID attended the applicant’s home in October 2012 and made inquiries about him (at [29]);
(l)the applicant was in hiding following his release from prison (at [30]);
(m)the applicant was at risk of harm in Sri Lanka due to any perceived links to, or support for, the LTTE, his previous offence, breach of bail conditions, or failure to report (at [30]);
(n)the applicant would face harm on return as a young Tamil male from the north, or based upon his political opinion generally (at [31]-[35]);
(o)the applicant would be a person of interest on account of his participation in public activities in Australia or that he would be at risk of adverse attention from the authorities by attending memorial events in Sri Lanka (at [38]-[39]).
The IAA accepted that the applicant departed Sri Lanka illegally and could be identifiable as an asylum seeker on return. The IAA noted that it had found that the applicant was not of any adverse interest to the Sri Lankan authorities at the time he left Sri Lanka and that the Sri Lankan authorities had not shown any interest in the applicant in the nearly five years since he left. The IAA considered that the applicant’s activities in Australia were low level and not ones that had raised his profile with the Sri Lankan authorities. The IAA therefore was not satisfied that the applicant was at risk of attracting adverse attention from the authorities if returned to Sri Lanka (at [42]-[44]).
Having regard to available country information, the IAA considered that the applicant may face a limited period of detention and a fine on account of his illegal departure. The IAA did not accept that these consequences would result in serious or significant harm. The IAA did not accept that the consequences would be greater because of the applicant’s previous court case. Although the IAA accepted that it was possible that the authorities would be aware of his previous case and imprisonment, the IAA did not accept that this had raised his profile with the Sri Lankan authorities beyond that of an ordinary illegal departee and returning asylum seeker (at [42]-[51] and [57]-[59]).
Having regard to the above, the IAA found that the applicant was unable to meet the criteria for a protection visa and affirmed the Delegate’s decision (at [52]-[60]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings before this Court through an application filed on 26 February 2018. The matter remained in the central migration docket for some time, before being transferred to my docket more recently and listed for hearing. The applicant ultimately relied upon an amended application filed on 8 August 2024 containing the following grounds:
Amended Ground Four
The Immigration Assessment Authority's (IAA) failure to invite the applicant to clarify in writing or at an interview, or not considering or to exercise the power, under section 473DC(3) of the Migration Act, was legally unreasonable. in the particular circumstances of this case. The IAA made the similar jurisdictional error identified in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34.
Particulars
(1.1)2006 visit: At [CB 152] the delegate accepted that it is plausible the applicant forcibly taken by the LTTE in 2005 and received physical fitness and self defence training. It is also accepted in 2006, that it plausible the Sri Lankan authorities came to the applicant's home looking for him.
(1.2)However, the IAA (Paragraph 8-12) had doubt about the LTTE training and escape claim but only accepted training on the basis of giving benefit of the doubt. The IAA did not accept the visit of the Sri Lankan authorities to his home in 2006.
2.1:imprisonment for [redacted] offences and bail conditions: At [CB152] the delegate made finding that "I am satisfied with the applicant's explanation and accept he was imprisoned for [redacted] offences. Further, he was released [a period of time] later and placed on bail conditions to be plausible."
2.2Contrary to the Delegate's finding. the IAA did not accept he was released [a period of time] later and placed on bail conditions. IAA should had clarified the applicant by way of interview or in writing all its concerns and doubts Paragraphs [23-25] All the unwarranted assumptions the IAA had at paragraph 24 should be clarified by the IAA.
2.3The delegate implicitly accepted (CB 152) that "the applicant claims on each occasions he reported to the police station he was interrogated and accused by the police officers of being involved with the LTTE. He claimed for this reasons he broke bail conditions. I am satisfied...." and at 154 I accept the applicant's [associate] had arranged for [the alleged item]...... [and] after reporting on three occasions the applicant broke his bail conditions."
2.4However, the IAA at para 25 [CB187] accepted that he was required by the police to report monthly based on country information (other than bail). And then made finding "I find this obligation ceased after the third time he reported and I am of the view that the interrogation about the LTTE, thereby breaching the obligation to continue reporting. I similarly the IAA rejected the claim that after this he kept moving between friend's houses as out of fear of police.
2.4The IAA at 28 [CB188] once again departed the finding of the delegate refusing his detention on a second occasion in 2009 and his [family member] paid money. The delegate at CB 153 found it implausible the applicant was detained for 24 hours without being questioned, and for this reason delegate did not accept the arrest. Although both delegate and IAA provided dissimilar reasons for this finding, they not accept or refuse the applicant's evidence fully. IAA made unwarranted assumptions about the justice process in Sri Lanka particularly young Tamils in [an area]. IAA should further clarified this.
3.1Court-related documents: The Delegate's finding implies that the court documents were accepted. The applicant provided all the original and translated documents to the delegate, who verified and approved them. The delegate made photocopies of the documents at the end of the hearing and returned them to the applicant.
3.2However, the IAA did not give weight to the documents provided to support this claim. In paragraph 18, the IAA expressed concerns that the original document "appears to be incomplete" and noted that "there appear to be pages missing and pages have only been partially photocopied." The Delegate had made photocopies of all the documents, and the IAA should have clarified this with either the Delegate or the applicant. It is obvious that the IAA made this decision after listening to the delegate's interview recording.
4.1October 2012 visit to his parent: The delegate accepted the visit in 2012 to [an area] (CB153) visit but stated that it implausible that after seven years, the applicant was of interest to the CID for his LTTE training.
4.2The IAA did not provide this 7 year rationale which is irrational and no independent evidence to support that finding. However, the IAA deviated from this line of reasoning and made credibility finding. Firstly the failure to refer in his statement was not considered a credibility issue by the delegate following the face to face interview. Secondly the inconsistency pointed out by the IAA identified was not a matter before the delegate to address or resolve with the applicant.
Ground Five
The reasoning process and findings of the IAA are inconsistent, illogical, irrational, and legally unreasonable, and are based on unwarranted assumptions lacking a probative evidentiary basis.
Particulars:
I.The IAA considered the DFAT report 2017, which states, "Upon arrival in Sri Lanka, all involuntarily returnees are processed by the Sri Lankan authorities for verification of their travel documents, identity, and any outstanding criminal matters" [44].
II.The authority acknowledged that while the applicant was detained by the CID in relation to the [relevant offence], the applicant was "physically mistreated" [19].
III.The illegal departure is a second offense under Sri Lankan [relevant] law. It is unreasonable for the IAA not to recognize that the applicant is highly likely to receive a full-term maximum imprisonment and bail will be refused for the illegal departure offense because he had already committed a crime under the [relevant law] of Sri Lanka. Therefore, the findings at paragraphs 50-51 and 57-58 are based on unwarranted assumptions lacking a probative evidentiary basis. The period of detention is “not brief” or “the most of the days'' based on the circumstances.
IV.Once he is detained for a prolonged period without bail and receives a sentence, the harm he will suffer is serious and significant under the Migration Act 1959 (Cth).
Ground 4
Ground 4 contended that the IAA unreasonably failed to exercise, or consider exercising, its powers under s 473DC of the Migration Act 1958 (Cth) (Act). This concerned issues relating to the:
(a)2006 visit;
(b)applicant’s imprisonment for certain offences and bail conditions;
(c)Court related documents;
(d)applicant’s detention in 2009; and
(e)October 2012 visit to the applicant’s parents.
The applicant relied upon ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 (ABT17). In that case, 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]) (inter alia):
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.
The applicant also relied upon Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRK18 [2021] FCA 1070 (CRK18). In that case, Kerr J dismissed an appeal from a decision of Judge Heffernan finding jurisdictional error of the type identified in ABT17. Judge Heffernan had found, in the circumstances of that case, that the IAA’s departure from the reasoning of the delegate without considering exercising its discretion in s 473DC was legally unreasonable. Justice Kerr reasoned that the circumstances identified in ABT17 at [22]-[23] as not requiring the IAA ordinarily to invite further information did not apply. This was in circumstances where the IAA had not accepted a claim, which had been accepted by the Delegate, on the basis that it was a recent invention that had not been raised in the applicant’s statement of claims (at [55]-[73]).
The Minister relied upon CVP17 v Minister for Immigration and Border Protection [2021] FCA 1502 at [46] per O'Bryan J as authority for the proposition that legal unreasonableness will not be established from the mere fact that the IAA came to a different view than the delegate. The Minister further submitted that it was open to the IAA to make its own findings of fact by reference to DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [76] per Reeves, Robertson and Rangiah JJ and Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [17] per Gageler J (as his Honour then was), Keane and Nettle JJ.
The 2006 visit
The applicant observed that that the Delegate had reasoned as follows (at CB 152):
I accept that it is plausible the applicant was forcibly taken by the LTTE in 2005 and was given physical fitness and self-defence training. I also accept in 2006 that it is plausible the Sri Lankan authorities came to the applicant’s home looking for him.
In contrast, the IAA (at [8]-[12]) expressed doubt regarding the applicant’s LTTE training and escape claims. Although the IAA accepted them, this was only by “giving the applicant the benefit of the doubt”. The IAA did not accept the applicant’s claim that the CID had come looking for him in 2006, reasoning:
12.… I do not consider it plausible that firstly, he would fail to mention something as serious as the CID coming to his home to look for him, or secondly, that if the CID had been interested in him, they would not have managed to locate him on another occasion either at home or at work particularly as he underwent training in 2005 and did not leave for [another area] until 2007. I do not accept that in 2006 the CID came to his home looking for him while he was at work or that because of that, he decided not to go home but stayed at his sister’s house.
The applicant submitted that it was unreasonable for the IAA to have reached a contrary finding with only the benefit of the audio recording, without giving him a chance to respond or clarify his evidence. The applicant submitted that the Delegate had not viewed the lack of reference to the CID visit in the applicant’s statement as a credibility concern following a face-to-face interview. The applicant submitted that if the IAA wished to divert from the Delegate’s finding, it ought to have exercised its power to clarify its concern with the applicant pursuant to s 473DC of the Act.
The applicant’s submissions in this regard focussed heavily upon the fact that the IAA made different findings from the Delegate regarding the credibility of the claim, notwithstanding the fact that the Delegate had the opportunity of seeing the applicant give his evidence at interview. However, the mere fact that the IAA comes to a different view than the Delegate, in circumstances where credibility is in issue, is not sufficient to demonstrate legal unreasonableness. Nor is the possibility that the IAA may have formed a different view if it had interviewed the applicant.
I am not persuaded that the informational gap in this regard was of such a nature as to have made it unreasonable for the IAA not to have sought further information. Although the IAA gave no reasons for not exercising its discretion in this manner, it was not obliged to do so.
Whilst the IAA gave reasons for doubting the applicant’s training and escape claims, those claims were ultimately accepted. I do not accept, as was submitted by the applicant, that the evidence establishes that demeanour played any particular role in the IAA’s consideration at [8] that the applicant’s evidence at interview regarding the training had been “unconvincing”. Such a term may as readily have referred to the content of the evidence rather than its presentation. In any event, the fact that the IAA had decided to proceed on the basis of acceptance of these claims provided an intelligible basis for not seeking further information from the applicant that may have allayed its doubts.
In relation to the IAA’s non-acceptance of the applicant’s claim that the CID had come to his home looking for him in 2006, the significance of this finding must be considered in the context of the totality of the material before the IAA. Both the Delegate and the IAA relied upon country information indicating that the situation in Sri Lanka had changed significantly by the time of their respective decisions. Although the Delegate considered it “plausible” that the Sri Lankan authorities came to the applicant’s home looking for him in 2006, this acceptance did not play a particularly central role in the Delegate’s decision. This was in circumstances where the Delegate accepted that the applicant had subsequently come to the attention of authorities and appears to have considered that both the applicant’s situation and the country information had moved on.
Similarly, the IAA considered this claim in a context where the applicant claimed to have subsequently come to the attention of, and been in the custody of, the authorities. That is not to say that the CID previously looking for the applicant was not capable of bearing upon these claims. However, the significance of this claim had to be considered in the context of the balance of the applicant’s claims and the reasoning of the IAA. This included the limitations in the information apparently possessed by the applicant in relation to the claim, and the fact that the applicant claimed (and the IAA accepted) that he had subsequently had encounters with the authorities over the years of some significance and greater recency.
It is not apparent that the Delegate placed any particular reliance upon demeanour in accepting the applicant’s claim that the CID had looked for him in 2006 was “plausible”. Such a finding may just as readily have referred to the inherent plausibility of the claim, in the context of country information regarding the situation at the time. Similarly, it is not apparent that demeanour or the manner in which the evidence was given significantly informed the IAA’s reasoning. Rather, the IAA appears to have based its rejection of the claim upon (a) the fact that such a claim had not been raised in the applicant’s written statement, and (b) its consideration that it was implausible that the CID would not have been able to locate the applicant on another occasion at home or work in the time that had followed if they were interested in doing so.
Although the applicant may have given further evidence in response to these concerns if he had been invited to do so, I am not persuaded that this renders the lack of such an invitation legally unreasonable. This is having due regard to the statutory scheme under Part 7AA of the Act, which expressly limited the procedural requirements of an IAA review.
Taking into account the circumstances of this matter as a whole, I have not been persuaded that the IAA unreasonably failed to exercise, or consider exercising, its discretion under s 473DC of the Act in relation to the 2006 visit.
Imprisonment, bail conditions and Court documents
The applicant observed that the Delegate found (at CB 152):
The applicant claims he reported only on three occasions. The applicant claims on each occasion he reported to the police station he was interrogated and accused by the police officers of being involved with the LTTE. He claims for this reason he broke his bail conditions. I am satisfied with the applicant’s explanation and accept he was imprisoned for [redacted] offences. Further, he was released [a specified period] later and placed on bail conditions to be plausible.
The Delegate had also found (at CB 154):
I accept the applicant’s [associate] had arranged for [the alleged item]…. He was subsequently arrested by the CID. On [a specified date] the applicant appeared before the [Court] in connection to [specified] offences.10 I also accept the applicant was imprisoned for [specified] offences, and was released after [a specified period] on bail conditions; and after reporting on three occasions the applicant broke his bail conditions.
Footnote 10 related to a supporting document described as a “Court Transcript”.
In contrast, at [17]-[18] the IAA reasoned as follows in relation to the Court related documents:
17.In support of this claim, the applicant has provided copies of what purport to be court documents (original Sinhalese and English language translations) which he says confirm that he was investigated and charged by the Sri Lankan police for [the specified offence]. He stated, however, that he was himself unable to read the original court document as it is in Sinhalese; he also does not read English and stated neither document had been read to him in a language he could understand.
18.To the extent I have been able to, I have compared the original and the translated documents. The original appears to be incomplete; there appear to be pages missing and some pages have been only partially photocopied. In comparing the two, the translated documents comprise one long and four shorter typewritten reports. In the original, there is only one long document on letterhead in Sinhalese. I note there are also some discrepancies in the dates he has given for the events surrounding this claim and those in the documents he has provided. The applicant’s evidence throughout the protection process is that this happened at [a period]. The court documents, on the other hand, indicate that these events took place at [another period]. Given these issues and as I cannot, in any case, be satisfied that the translated documents provided are, in fact, accurate translations of the document/s the applicant relies on, I place no weight on the documents provided in support of this claim.
At [22]-[25] of its decision, the IAA reasoned (after drawing attention to certain inconsistencies in the applicant’s account) (footnotes omitted):
22.By themselves, I would not necessarily place much weight on these inconsistencies. However, the applicant also said in his SHEV interview that he had been arrested a second time late in 2009, detained for 24 hours, and again his family members… paid money to get him released in 24 hours. He said nothing happened, they picked him up when he was working, asked him who he was staying with, called his [family member], she came, paid money and he was released. He was unresponsive when the delegate asked him twice why this second incident wasn’t referred to in his written statement and became evasive when the delegate pressed him as to why, if he had breached his bail conditions, the police would not have raised this with him. He also said that the police asked him to come and sign every week but they didn’t say for how long he was supposed to do so.
23.I have difficulty in accepting that the applicant would knowingly risk drawing the attention of the authorities by breaching his bail conditions simply to avoid being questioned again about the LTTE. Moreover, even allowing for the down-scaling of security screening of Tamil civilians in [the area] in 20128 it is simply not plausible that if the applicant had broken bail conditions and/or was wanted in connection with LTTE suspicions, he could have continued to live and work in [the area] from 2009 until 2013 and not have come to the attention of the authorities if in fact he was a person of interest for either of these reasons even if, as he claimed, he was moving around. His representative submitted at the end of his SHEV interview that the translator didn’t know whether the reporting condition was officially imposed on the applicant. He submitted it could have been imposed informally and therefore there would not have been a record of it at the time of the applicant’s second arrest which would account for the police not taking action against him for breach of his bail condition. I reject this. If reporting to the police had been a condition of his bail, there would have been a record of it which the police would have discovered in processing the applicant in 2009. If it was an informal requirement, it follows that it was not a condition of his bail.
24.I am not satisfied that the applicant breached his bail conditions by failing to report or indeed, that he was released from prison on bail, at all. I accept that his [family member] paid some money at the time of his release to a lawyer. In my view, the fact that money was paid on his release is not determinative of whether or not he was released on bail. There could be any number of reasons why the money was required to be paid when he was released including a fine, court costs, lawyer’s fees, etc. His evidence was that after his appearance in court in [an area] he was sentenced to [a period of] imprisonment which he served at [a] prison, following which he was released. As he was released from custody, having served what he said was his sentence, it does not make sense that bail would be imposed in order to ensure his further court appearance at a future date. For these reasons I do not accept that the applicant was released on bail from [the] prison or that one of the conditions of his bail was that he report to the authorities and I reject the claim that he breached his bail conditions when he ceased reporting.
25.I accept as plausible that, as a Tamil who had served time in prison, the applicant was required by the police to report monthly. In my view, such a requirement is consistent with the country information about the security environment then prevailing in [the area] and the attendant routine monitoring and harassment of Tamils. However, for the reasons discussed above, I find this obligation ceased after the third time he reported and I am of the view that the applicant has fabricated his claims to have ceased reporting because he feared further interrogation about the LTTE, thereby breaching the obligation to continue reporting. I similarly reject the claim that after this he kept moving between friend’s houses as he was afraid the police would come after him.
At [28], the IAA reasoned:
28.I reject the claim that the case against him is ongoing and I am satisfied that the applicant is not at risk of harm for having breached his bail conditions. For the same reasons I am satisfied the applicant is not at risk of imprisonment for having breached his bail conditions or because of [his previous offence]. I accept that he was detained on a second occasion in 2009 and that his [family member] had to pay money for his release. However, on his evidence, nothing happened on this occasion; he does not claim to have been mistreated, was not questioned except in relation to where he was staying, and was released within 24 hours. I am satisfied that this incident was attributable to the scrutiny, monitoring and harassment to which Tamils in [the area] were subject at the time and was unrelated to the [offence].
While the Delegate had accepted that the applicant had breached his bail conditions, the IAA did not accept this nor that any bail conditions had been imposed. The IAA accepted that the applicant had monthly reporting obligations after his release, but found that they ceased after the third time the applicant reported. Unlike the Delegate, the IAA doubted the Court related documents that had been submitted.
Unlike the Delegate, the IAA was prepared to accept that the applicant had been detained on a second occasion in 2009. However, the IAA considered that this was attributable to the general scrutiny, monitoring and harassment of Tamils at the time and was unrelated to the applicant’s previous legal troubles (at [28]).
The applicant submitted that the IAA’s reasoning involved unwarranted assumptions being made about the situation in Sri Lanka. However, this submission was not fulsomely developed. It has not been demonstrated, by reference to the material before the IAA, that an inference ought to be drawn that the IAA made unwarranted assumptions regarding the country situation. As I have not accepted that the IAA made unwarranted assumptions, I do not accept that the IAA fell into error in not seeking clarification of same.
The question, then, is whether it was otherwise unreasonable for the IAA to have declined to exercise, or failed to consider exercising, its powers under s 473DC of the Act in relation to the applicant’s claim to have breached his bail conditions and related evidence.
Findings of legal unreasonableness are not to be made lightly. However, in the particular circumstances of this case (and having regard to authorities such as ABT17 and CRK18), I accept that it has been demonstrated. This is considering the following:
(a)The IAA’s reasoning suggests that demeanour played some role in its assessment of the applicant’s evidence. In particular, the IAA considered that the applicant had been “evasive” when pressed as to why, if he had breached his bail conditions, the police would not have raised this with him. The transcript shows that when asked at interview about what the police had said in relation to the reporting conditions, the applicant’s evidence was that they had not talked to him about them (transcript, p 25). Although the Delegate noted in the lead up to that question, more than once, the applicant’s reporting conditions in this context (transcript, pp 23-35), the Delegate (understandably) does not appear to have directly asked the applicant to explain the motivations of the police. His responses, therefore, appear to have been largely directed towards what he said had occurred.
(b)Whilst the exchanges between the Delegate and applicant do not appear to have always occurred with perfect fluidity, this does not appear to have been solely attributable to the applicant. It is therefore unclear why the IAA would have characterised the applicant’s evidence as “evasive” in relation to the motivations of the police, absent some reliance upon the manner in which his evidence had been given. The Delegate, who had the benefit of a face-to-face interview with the applicant, had not found the applicant’s evidence to be similarly “evasive”. Rather, in the lead up to the question ultimately asked about whether the police had talked to the applicant about his reporting obligations (transcript, pp 25), the Delegate appears to have considered that the applicant was exhibiting some (understandable) confusion about what the Delegate had been asking.
(c)The Delegate did not doubt the veracity of the Court documents that had been submitted. The applicant contended before the Court that the IAA’s issues with the photocopying of the documents may have been explained by the photocopying done by the Delegate at interview. Although the evidence is not entirely clear on this point, the interview transcript does suggest that the Delegate undertook copying of the applicant’s documents on the day of the interview (transcript, pp 3-4 and 29). The Minister did not contend otherwise.
(d)As the IAA observed, the applicant had indicated at interview that he had been unable to read the original Court documents as they were in Sinhalese and stated that neither these nor the English translation had been read to him in a language that he understood. The transcript of the interview indicates that the Delegate attempted to describe the content of the documents to the applicant. The Delegate gave no indication that the dates in the documents might be regarded as relevant or problematic, either in the interview or in the Delegate’s decision record (transcript, pp 19-20).
(e)The IAA had the audio of the interview before it. The IAA accordingly would have been aware that the applicant’s understanding of the documents in question had potentially been influenced by the Delegate’s description of those documents at interview. That description did not include reference to the problems with the documents that were relied upon by the IAA. The Delegate had not described the dates in the document, let alone suggested to the applicant that they may be inconsistent with his other evidence.
(f)The Court documents were important because, inter alia, they supported the applicant’s contention that he had been granted “bail” (CB 134). The IAA did not accept that the applicant “was released from prison on bail, at all”. In contrast, the Delegate had accepted the applicant’s claims to have been released on bail, subject to conditions that he had breached. The applicant had claimed that the breach of his bail conditions may expose him to adverse interest and harm upon return to Sri Lanka.
It follows that I am unable to accept the Minister’s submission that the IAA’s reasoning in this regard depended entirely upon the objective content of the applicant’s evidence, as distinct from the manner in which it was given. The IAA’s reasoning suggests at least some level of reliance by the IAA upon the manner in which the applicant’s evidence was given at interview.
I accept that there were more objective features of the evidence that were also relied upon by the IAA. However, these included inconsistencies regarding the Court documents that had not been raised with the applicant at interview or in the Delegate’s decision. This was despite the applicant’s evidence at interview, which was acknowledged by the IAA, that the documents had not been read to him in a language that he understood. It was in circumstances where the Delegate, in describing the contents of the documents for the applicant, had not raised features that were relied upon by the IAA.
Another basis of the IAA’s rejection of the documents related to the copying of the documents. This was a matter in respect of which the material before the IAA indicated that the Delegate may have also played a role at interview.
Despite this, there is no indication in the IAA’s reasoning that it considered the exercise of its powers under s 473DC of the Act. Nor is the justification for this evident, in the particular circumstances of this case. Whether or not the applicant had breached his bail conditions was significant to the applicant’s claims. Had the IAA accepted that the applicant had breached those conditions, then it is possible that the IAA may have taken a different view regarding the applicant’s profile with the authorities and risk of harm upon return to Sri Lanka.
Taking into account the circumstances of this case as a whole, I have been persuaded that the applicant has demonstrated the species of error considered in cases such as ABT17 and CRK18.
Second detention in 2009
Given my findings above, it is not strictly necessary to determine the balance of the applicant’s complaints. However, for completeness, I will endeavour to do so succinctly.
I have not been persuaded that legal unreasonableness has been demonstrated by the different reasons given by the IAA at [28] in relation to the applicant’s claimed detention on a second occasion in 2009. The IAA’s findings in this regard were, in a manner, more generous than the findings of the Delegate. The IAA accepted that the applicant had been detained in 2009 on account of the situation in the country at the time. The IAA’s decision indicates that its understanding of the situation was based upon a number of country information reports that were before it. It has not been demonstrated that the IAA’s findings in this regard were based upon unwarranted assumptions regarding the country situation in Sri Lanka.
The IAA did not accept that the second arrest in 2009 was related to the applicant’s previous offence, or indicated ongoing adverse interest in the applicant. This was based upon the applicant’s own evidence of what had occurred during the encounter as well as the swiftness of his release. The mere fact that the IAA made different findings from the Delegate did not render it unreasonable for the IAA not to have sought further information from the applicant. In the above circumstances, I am not persuaded that legal unreasonableness has been demonstrated in relation to this matter.
October 2012 visit
I have also not been persuaded that legal unreasonableness has been demonstrated regarding the different findings made by the IAA in relation to the October 2012 visit.
Both the Delegate and the IAA accepted that the applicant visited his home area in October 2012. Both did not accept that the CID had visited his family home in October 2012, although they gave different reasons for this. The Delegate rejected the claim on the basis that it was implausible that the applicant was of interest to the CID for his involvement in compulsory training with the LTTE 7 years previously (CB 153). The IAA’s rejection of the claim was based upon other issues in his evidence, set out at [29] of its decision as follows:
29.In his SHEV interview, the delegate put to the applicant that although he claimed to have been in hiding in [an area] and not to have travelled anywhere else, he said in his entry interview that he returned to [his home area] in 2012 to visit his parents. The applicant agreed but said his visit in October 2012 had to be cut short because his mother told him the CID was still looking for him and he should return to [the other area] immediately. The applicant said the CID was still looking for him because of the training he received from the LTTE in 2005. He said he returned to [the other area] and when asked by the delegate how he spent the next eight months before he left, he referred vaguely to moving ‘here and there’. The applicant only admitted having travelled back to [his home area] in 2012 when that information was put to him by the delegate, after he specifically stated he had not travelled anywhere else. Further, the evidence he gave in his SHEV interview about the CID’s enquiries in 2012 was not consistent with that earlier interview in which he said the army questioned him when he went home to [his home area]. Neither this, nor his failure to refer to the October 2012 visit in his written statement, reflect well on his credibility. Additionally, I do not consider it credible that the applicant would fail to mention in his SHEV application something as significant as the CID attending at his home… and enquiring after him. For these reasons I have formed the view that the applicant has fabricated the claim that the CID came looking for him in October 2012 at home in [his home area] in order to enhance his claims for protection. It follows that, while I accept he went home to [his home area] to visit, I do not accept that he was forced to cut short his visit home because of a visit by the CID.
The applicant contended the IAA's credibility findings were based upon factors that were not thoroughly investigated or substantiated, leading to potential gaps in the reasoning behind its decision. The applicant suggested that inconsistency in the accounts given may have been explained by translation issues or differences in dialogue. The applicant contended that the IAA ought to have clarified its concerns with him, in circumstances where those concerns were not raised by the Delegate.
I am not persuaded that the matters raised by the applicant demonstrate legal unreasonableness. At least part of the IAA’s concerns had been explored, at least to some extent, with the applicant at interview (transcript, p 27). It is not apparent that anything said by the Delegate would have led the applicant to believe that his evidence in this regard would be understood in a particular way, and it was always a possibility that the IAA may take a different view of the evidence. Neither the Delegate nor the IAA ultimately accepted the claim regarding the CID visit. It is not apparent that the IAA’s rejection of the claim placed any particular reliance upon demeanour. The IAA’s characterisation of the evidence as “vague” appears to have been referable to the content of the evidence. Although the applicant may have been able to explain some of the difficulties identified by the IAA, this does not render the approach taken by the IAA legally unreasonable.
Conclusion
For the reasons given above, however, I have been persuaded that the applicant ought to succeed in relation to ground 4. This is by reference to the approach taken by the IAA to the applicant’s claims regarding bail conditions and the Court documents.
Ground 5
Ground 5 contended that the IAA’s reasoning was illogical, unreasonable or otherwise not open to the IAA. The applicant contended that because his illegal departure was a second offence, it was unreasonable for the IAA not to have recognised that the applicant was “highly likely to receive a full-term maximum imprisonment and bail will be refused”. The applicant contended that [50]-[51] and [57]-[58] of the IAA’s decision were therefore based upon unwarranted assumptions lacking a probative evidentiary basis.
The IAA considered risk to the applicant as an asylum seeker who had departed illegally at [42]-[52] and [57]-[59] of its decision. As summarised above, the IAA concluded that although the applicant may be briefly detained and face a fine, the IAA was not persuaded that this would result in serious or significant harm.
In coming to these conclusions, the IAA cited a number of country information reports. Those reports are not in evidence. The IAA reasoned as follows at [48] in relation to the applicant’s submission that his treatment would be impacted by the fact that his illegal departure was his second offence (some details have been redacted to prevent identification of the applicant):
48.On behalf of the applicant, it was submitted that because he had a previous court case [redacted] and it is unclear if those proceedings are finished, the penalty and period of detention will be more for the applicant. I reject that submission. As discussed above, the applicant’s evidence was that he served his sentence and was released after having done so. I accept he reported to the police after he was released from prison. However, I have found that that obligation ceased after three months after which he continued to live and work in [an area] for a further five years and with the exception of the 2009 incident which I have found was also attributable to routine monitoring and harassment, did not again come to the attention of the authorities. I accept that it is possible that in the course of their routine checks, the authorities will find out that the applicant has served time in prison in [redacted]. However, that matter was concluded… years ago and, with the exception of the 2009 incident, the applicant did not again come to the attention of the authorities for any reason. I have found that the applicant was not a person of interest at the time he left Sri Lanka for any reason including breach of bail conditions and I am satisfied that his… court case and imprisonment, should they come to light on his return, have not raised his profile with the Sri Lankan authorities beyond that of an ordinary illegal departee and returning asylum seeker.
The applicant has not demonstrated that this reasoning was relevantly closed to the IAA, by reference to the material that was before it or otherwise. Nor has the applicant demonstrated, by reference to the material before the IAA, that the IAA relied upon unwarranted assumptions (as opposed to drawing inferences that were available from the country information that it cited at [42]-[52]). Although the applicant contended that he would face harsher penalties on account of his previous offence, he did not take the Court to any country information that would have required that conclusion. Nor did he demonstrate, by reference to the material before the IAA, that a contrary conclusion was unavailable.
In written submissions, the applicant suggested that the IAA failed to take into account his previous mistreatment by the CID after his first offence. However, the IAA accepted that this had occurred at [19] of its reasons. I have not been persuaded that this was overlooked by the IAA in its subsequent reasoning. That reasoning appears to have been based upon more recent country information regarding treatment of returnees. The applicant has not demonstrated that this reasoning was relevantly closed to the IAA.
It follows that ground 5 is unable to succeed.
CONCLUSION
As the applicant has succeeded under ground 4, the application before the Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 5 November 2024
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