BCF19 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1376
•13 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BCF19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1376
File number(s): ADG 96 of 2019 Judgment of: JUDGE GERRARD Date of judgment: 13 December 2024 Catchwords: MIGRATION – protection visa – whether the IAA failed to make a finding – whether the IAA was required to make a finding regarding authenticity of an arrest warrant – whether sufficient to merely record concerns with critical evidence – whether concerns regarding the arrest warrant constituted fraud – jurisdictional error established – writs issued. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 36(2A), 473CB, 473DC, 473DC(3), 473DD, 473DD(b)(ii), 476
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Cth) rr 11(3), 12(3)
Cases cited: AOC18 v Minister for Immigration., Citizenship and Multicultural Affairs [2023] FedCFamC2G 591
BFD17 v Minister for Immigration [2023] FCA 887
BZO17 v Minister for Immigration [2017] FCCA 2085
BZO17 v Minister for Immigration and Border Protection [2018] FCA 384
SZTKV v Minister for Immigration and Border Protection [2014] FCA 903
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511, [2003] FCAFC 171
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74
WZAOF v Minister for Immigration and Citizenship [2012] FMCA 668
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of last submission/s: 10 July 2024 Date of hearing: 16 October 2024 Place: Adelaide Counsel for the Applicant: Adam McBeth Solicitor for the Applicant: Wimal & Associates Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 96 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BCF19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Immigration Assessment Authority made on 28 February 2019.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the applicant’s review application 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 GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (the IAA) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Safe Haven Enterprise (subclass 790) (SHEV) visa (the visa). As will be explained, for the applicant to succeed in this Court, he must establish that the IAA decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has found jurisdictional error in the IAA decision. On that basis, the application has succeeded.
BACKGROUND
The applicant is a Sri Lankan Tamil who arrived in Australia on 24 October 2012 as an unauthorised maritime arrival (Court Book (CB) 39).
On 21 January 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 1).
On 15 September 2016, the applicant lodged his visa application with the assistance of an authorised migration agent, providing written submissions and supporting documentation alongside the application (CB 16-66).
On 23 May 2018, the Minister invited the applicant to attend an interview scheduled for 6 June 2018 (CB 88-89). Following the interview, the applicant and his migration agent were invited to provide further information and submissions within 14 days. The applicant’s representative requested extensions of time on two separate occasions to produce further information (CB 91, 96), which were granted by the Minister on both occasions (CB 93, 102-103).
On 12 November 2018, a delegate of the Minister refused to grant the applicant the visa (CB 119-147).
On 16 November 2018, the delegate’s decision was referred to the second respondent, the IAA, for review (CB 149-150). On 8 December 2018, the applicant provided further information for consideration by the IAA (CB 156-170).
On 28 February 2019, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 175-194).
On 15 March 2019, the applicant lodged an application for judicial review in this Court. That application seeks review of the IAA’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). On 1 September 2023, the applicant filed an amended application.
THE IAA DECISION
To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error. It is thus useful to outline the IAA’s decision in some detail.
The IAA began by noting that it had regard to the material given by the Secretary under s 473CB of the Act (at [3]).
The IAA observed that it had received further information from the applicant’s representative on 8 December 2018. This further information included a submission from the applicant’s representative, a Statutory Declaration from the applicant, and a copy of a purported arrest warrant with accompanying translation (at [4]).
The IAA found that s 473DD(b)(ii) was met in respect of the Statutory Declaration and arrest warrant. The IAA was satisfied that the information is capable of being believed, and therefore credible in the relevant sense, and is potentially determinative to the review. On this basis, the IAA was satisfied that there were exceptional circumstances to justify considering this new information (at [7]).
However, the IAA found that the submission provided by the applicant, which included a link to a Human Rights Watch report, as well as other written commentary, did not satisfy s 473DD. As a result, the IAA was not satisfied that exceptional circumstances exist to justify consideration of this new information (at [8]-[9]).
The IAA then summarised, in detail, the applicant’s claims articulated in his two SHEV interviews, as well as his supplementary statement (at [10]).
The IAA considered the applicant’s claims in respect of issues arising from his support of the Tamil National Alliance (TNA) candidate. The IAA found that the applicant’s involvement was confined to low-level activities in his village in the months leading up to an election and that he himself did not have a prominent political profile (at [13]). However, it accepted that he was sought twice by the Karuna Party whilst hiding at his sister’s house (at [14]). It did not accept the letters the applicant provided, purportedly from the Parish Priest, and from the MP he supported in the 2012 Provincial Council election campaign, as it was not satisfied that they were authentic (at [15]). In particular, the IAA noted that whilst the two letters contained different letter heads, both included identical text in the body of the letter, so the IAA found that the letters both embellished the extent to which the applicant was threatened. In light of this, the IAA gave no weight to them in its decision (at [15]).
The IAA then considered the applicant’s claims in respect of LTTE involvement and weapons charges. The IAA accepted LTTE members, including the applicant’s uncle, used to stay at his house (at [16]). However, it had concerns with the plausibility of the applicant’s claims that these LTTE members would often leave weapons and other items at his house (at [19]).
The IAA noted concerns with the applicant’s alleged problems about the weapons charge incident in April or May 2002. The applicant claimed that, upon hearing of Sri Lankan Army round-up, he rushed home to get a bag the LTTE had left behind and hid it in a forest approximately 500 metres from his house. He claimed that when he went back after the round-up, it was gone, and he was warned by his uncle and other LTTE members that his story would not be believed so he went to Qatar (at [16]). The IAA also noted various concerns with the credibility of the consequential events that the applicant claims flowed from the scenario with the missing bag (at [20]).
The IAA considered the circumstances leading up to, and including, the arrest warrant issued against the applicant. Upon the applicant’s return from Qatar to Sri Lanka, he alleged that he was held by the Criminal Investigation Department (the CID) for one to three days, where he was interrogated, physically abused and tortured over the missing bag. He alleged he was jailed for 12 days, charged with an offence and released on bail (at [17]). He then provided a letter dated 15 December 2016, purportedly authored by his lawyer, to his sister, who he claims acted as guarantor for his bail. The letter advised that his sister must produce him to the court on 14 December 2016 and 3 May 2017, and if she failed to do so, serious legal repercussions would accrue against her. He provided a letter dated 6 July 2018, purportedly from his elder sister to a Justice of the Peace, stating that he was scared for his life and went abroad but that the case was continuing. He then provided a purported arrest warrant dated 12 October 2018, issued by the District Judge and Magistrate for Valaichenai, naming the applicant as the subject of the warrant and stating the particulars of the alleged offence/reasons for the issue of warrant as “not attending court” (at [21]). The IAA noted its concerns about the vague particulars of the applicant’s alleged offence and the plausibility of an arrest warrant being issued for the applicant for the first time in 2018, given he confirmed at the SHEV interview that no prior warrants had been issued (at [22]).
The IAA did not accept any claims regarding the applicant’s interrogation, detention, torture, charges against him, or bail. The IAA also did not accept that he departed Sri Lanka whilst on bail, being subject to reporting requirements, or that he is wanted in relation to any weapons cases or charges against him (at [24]).
The IAA also considered the incident that occurred in 2015, where the applicant’s nephew was kidnapped by the Karuna Party. The IAA found that this was an isolated incident and does not indicate any risk of harm to the applicant (at [26]).
Furthermore, in considering the applicant’s TNA involvement/political activities (at [29]-[31]), links to the LTTE (at [32]-[39]), return as a failed asylum seeker (at [40]-[46]) and illegal departure (at [47]-[52]), the IAA found that the applicant does not have a well-founded fear of persecution (at [53]).
The IAA then considered the applicant against the complementary protection criterion. The IAA was satisfied that the applicant would not be considered to have an LTTE, separatist or other anti-government profile (at [57]). However, the IAA did accept that as a Tamil returnee, he may face some societal discrimination and routine visits/monitoring, but it was satisfied that this would not amount to serious or significant harm for the purposes of s 36(2A) of the Act (at [58]).
Having regard to the above, the IAA concluded that the applicant was unable to meet the criteria for the protection visa. Accordingly, the IAA affirmed the delegate’s decision to not grant the applicant a protection visa.
APPLICATION TO THIS COURT
The amended application for judicial review filed by the applicant on 1 September 2023 contains the following grounds of review:
1.The IAA failed to complete its statutory task in that it failed to make a finding as to whether the arrest warrant provided by the applicant was genuine or fraudulent and consider the evidence in light of such finding.
(a) The applicant provided an arrest warrant to the IAA to corroborate his claims.
(b) The IAA accepted that it was justified in considering the arrest warrant as new information in the review.
(c) The IAA accepted that the arrest warrant was potentially determinative to the review.
(d) The IAA expressed "concerns" about the arrest warrant but failed to make any finding as to whether the arrest warrant was genuine or fraudulent.
(e) The IAA failed to give proper consideration to and evaluate the evidence on which the applicant relied and thereby failed to complete its statutory task.
2.In the alternative to ground 1, insofar as the IAA made an implicit finding that the arrest warrant was fraudulent, it was unreasonable for the IAA to make such a finding without first putting the allegation of fraud to the applicant and giving him an opportunity to respond.
(a)The applicant provided an arrest warrant to the IAA to corroborate his claims.
(b)The warrant had not been before the delegate.
(c)The IAA accepted that it was justified in considering the arrest warrant as new information in the review.
(d)The IAA accepted that the arrest warrant was potentially determinative to the review.
(e)The IAA failed to exercise its power under s 473DC of the Act to invite the applicant to respond to the proposition that the arrest warrant was fraudulent.
(f)It was unreasonable for the IAA to rely on an implicit finding of fraud without having put the allegation of fraud to the applicant and giving him an opportunity to respond.
CONSIDERATION
Ground one
What is the relevance of the arrest warrant?
In resolving this ground, it is first necessary to consider the significance of the arrest warrant to the applicant’s claims. The applicant’s most significant claim was that he feared that, if he returned to Sri Lanka, he would be immediately arrested and detained in relation to the case pending against him. He claimed that he had been released on bail and that he fled the country after that, notwithstanding his pending court case.
In his statement of claims accompanying his application, the applicant stated that he had been detained at the CID office in Colombo for three days before being produced to the Kochikadai Court, and then kept at Velikadai jail for 12 days. He claimed that his father and sister arranged for him to be released on bail. In that statement, the applicant said that the case was still ongoing, and his father and sister visited Kochikadai Court every three months to sign the bail register (CB 58). He further expressed concern that he was on a CID watch list because of the pending court case (CB 59).
The applicant subsequently produced a copy of a purported letter to the applicant’s sister from an Attorney in Colombo. That letter was in respect of Case No. 5708/01 and relevantly stated (CB 90):
…
When the above case was called on 27/07/2016 the 100th suspect namely [applicant] was absent.
The court has directed you being surety of the said accused to produce the aforesaid suspect to court on the next date namely, 14/12/2016.
Furthermore when the said case was called on 14/12/2016 you have also been warned to produce the said accused to court on 03/05/2017.
In the event if you fail to comply with the bail bond to produce the suspect on the next date serious legal repercussion will accrue against you.
…
The applicant also provided a letter from the applicant’s sister which relevantly stated (CB 112):
…My brother [applicant] was arrested and remanded by the Police in 2012 on the allegation that he was hoarding weapons. [Father] and I bailed him out during the hearing. The army personnel visited his house at frequent intervals. He was scared and concerned about the safety of his life and therefore he had gone abroad. The case is continuing. We are unable to obtain information about him from the court because we are his guarantors and if we make any attempt we might encounter numerous problems. Therefore we confirm that any information about him can only be obtained from the lawyer arguing the case.
…
The applicant also provided a statutory declaration in which he repeated his claim that he had been detained and released on bail attesting (CB 113):
…
I tried my level best to obtain a document from the police station or court through my family members in Sri Lanka to provide as an evidence for my protection claim.
My elder sister [name] (who took me on bail) could not obtain a document from the court or police station because as the person who gave bail to me, she is in the danger of getting questioned by the Sri Lankan authorities (as I am in Australia and jumped the bail).
Therefore my sister could not obtain a document from the court. She advised me that the only person who can give details about the case is the lawyer who is handling my case.
The lawyer who is handling my case is asking for Sri Lankan rupees 1,000,000 from my elder sister, to issue a letter explaining my current case.
As my sister could not pay Sri Lankan rupees 1,000,000 to the lawyer, she was unable to get a letter explaining my case.
…
In his interview with the Department, the following exchange took place:
So have you been charged with any offences?
Yes.
And what are the offences?
That I’m concealing arms and ammunition. And also I’m supplying arms and ammunition to others.
And do you have any – and what – and do you have an arrest warrant?
Nothing happens according to procedures in Sri Lanka. I do not have – there was no arrest warrant.
So are there any outstanding warrants for your arrest?
You know, when I came out in bail, I went back to the – to my house, and because the problems that I was facing with – from the Karuna group. And when I came out on bail, that’s when I was doing the campaigning for the party and whatnot. And that’s when the Karuna group also levelled the death threats towards me. Which – after which – I came to Australia. A flight to Australia. The letter is in relation to the case that has been – the charge.
Okay.
The charge against me.
There’s no – yeah. I’m just reading the letter that you claim is from your lawyer. It doesn’t have any information about the case. It just says that you’ve been called on the 27th of July 2016.
These are the dates which are given by the court for my - - -
But there’s no information about what it relates to.
He has not given the details of the case, the actual charge itself. It is just to show that there is a pending case against him.
Okay. Yeah.
If you don’t accept my explanation, you can call them and ask them. The case number is there, and you can verify with them.
Later, the interviewer raised the following concern with the applicant:
So in this letter you’re not even mentioned. So I don’t know. It doesn’t even mention that you are the accused. So this could relate to anyone.
Yes, but the names there – because my father’s name and my sister’s name is there because they’re the guarantors for me.
But it doesn’t tell me what – who this is – this person – what this case relates to do you. Do you understand? So when you give me this, I cannot put any weight on this document because one, it doesn’t mention you, and it doesn’t have any information about a case.
Yes. This shows the guarantee that they - - -
I will – because this was given to me only yesterday. Yes. I will contact and get – try and get more information.
Because as it is, I can’t – I can consider it, but I can’t put any weight on it. Because it doesn’t give me any information, and it doesn’t link. It doesn’t give me any information that it’s – that it relates to you. It doesn’t tell me – sorry. I’ll just finish. It doesn’t tell – it doesn’t give me any information that this relates to you. And it doesn’t give me any information about any charges that you claim that you – are still outstanding. I’ll just get you to translate what he said anyway. Just so I’ve got it on the record.
Yes. Okay. Well, what he’s saying is this is just the – because I’m not present there, these cases is against my sister and my father. All right. So that’s what this letter supports. Okay. And the lawyer (indistinct) she said, she’ll get further the details and - - -
We should have something – if you claim that the – that you’ve jumped bail and that you are wanted, that you have to report to the – one, to the police or to the courts, I would expect to see something from those authority – from the authorities in your name. And information as to what – why you are being – why you claim that you would be arrested if you were to return. Yeah. So I need to tell you that, even though you’ve provided this, I’m not putting any weight on it. I’m not going to …
This – excuse me, I apologise. I was seeking your apology. Because I’m talking with the emotions, because it’s my relating to my life. But I’d like to inquire, what other information would you like?
I can’t tell you what information I like, but if you are going to give me something, I would expect that – to prove your claims to me, I would expect that it would come from one, the courts or the police, and that it would have you – that it would relate to you, and it would have your name. And it would have information about the – what – your terms of your bail and all the claims that you’ve made. This has not given me that information. Which is why I’m not putting any weight on it. I’ll just explain it to you. This letter says the accused has to be at court on the 14th December 2016. It does not tell me – yeah, sorry. It does not tell me who the accused is.
The interviewer then gave the applicant seven days to provide further evidence. The applicant indicated that timeframe may not be sufficient and was told that if he could not provide that evidence within seven days, he could write and tell the Department why he needed additional time.
The delegate made a series of adverse findings in respect of the evidence contained within the sister’s letter and the credibility of the purported letter from the attorney and placed no weight on that letter. The delegate also recounted the advice given to the applicant at the interview that (CB 133):
…The applicant was advised that if he claims he is wanted by the courts for breaching the conditions of his bail and that he would be arrested on returning to Sri Lanka then it would be expected that he would have documentary evidence issued by the courts in his name.
…
What is apparent from both the transcript of the interview and the delegate’s decision is that the delegate made it clear to the applicant that, in order for the delegate to be satisfied that the applicant was wanted by the court in relation to breach of bail, he would be expected to provide a document issued by the court in his name.
As observed above, the applicant sent submissions to the IAA which also attached a copy of a purported arrest warrant, a translation of same and a statutory declaration from the applicant attesting to how he had come to be in the possession of the arrest warrant. In that statutory declaration, the applicant attested (CB 163):
…
As soon as I received my refusal decision, on 12 November 2018, I called my father [name] over the phone and informed him about my refusal decision.
While talking to my father on 12 November 2018, my father told me the following: “On 15 October 2018, two police men from Wellaveli police station came to our house at [address] and issued a warrant of arrest in my name. The police men asked me to produce me on or before 26 November 2018”.
…
The arrest warrant, or at least the translation of the arrest warrant, identified the applicant and his father’s address as the name and address of the person in respect of whom the warrant was issued. The particulars of the alleged offence or reason for issue of warrant are stated as “[n]ot attending court”. The warrant concludes by stating “[y]ou are hereby required and authorized to arrest the above named person and to produce him before this court on 26/11/18” (CB 164).
As observed above, the delegate specifically placed the applicant on notice that there would be a difficulty accepting this claim in the absence of a document from either the police or the court that named him. The delegate’s decision made adverse findings in that respect.
Accordingly, the applicant was aware that his claim for being wanted by the courts for breaching the conditions of his bail had not been accepted principally because he had not produced “documentary evidence issued by the courts in his name” (CB 133). That is the context in which he produced the arrest warrant. That arrest warrant was issued by a court in his name and related to “not attending court” (CB 164). On its face, the document appeared to address all of the deficiencies raised by the delegate.
The IAA considered that there were exceptional circumstances to justify considering the arrest warrant and supporting information as new information, observing that this information was “potentially determinative to the review” (CB 176, at [6]-[7]). Plainly, this was correct. The arrest warrant could be regarded as objective evidence of the applicant’s claim that he would be arrested upon return to Sri Lanka because he had failed to appear at a prior court hearing.
That finding was confined to its consideration of whether it should accept the information and have regard to it, and does not suggest that the information would ultimately either be accepted or determinative to the review. Nevertheless, it reinforces what is apparent from the contextual history above and that is that the arrest document was a critical document relevant to the applicant’s central claim. Moreover, it was the one piece of evidence that distinguished the factual matrix before the IAA from that which was before the delegate.
Did the IAA make a finding regarding the authenticity of the arrest warrant?
The IAA dealt with the arrest warrant at [22] as follows:
…As for the purported arrest warrant, while I found it was credible in the sense relevant to s 473DD(b)(ii), at this deliberative stage of the review I have concerns about the vague particulars of the applicant’s alleged offence being for “not attending court” absent any other contextual detail such as for example, the charges against the applicant or the dates of non-appearance. I also have concerns about the plausibility of an arrest warrant being issued for the applicant in 2018 given he confirmed at the SHEV interview that no prior arrest warrants had been issued.
The parties concur that the IAA did not make a finding in respect of whether the arrest warrant was genuine or not. The Court agrees. It simply records concerns.
Two questions flow from that. Firstly, was the IAA required to make a finding that the arrest warrant was genuine? Secondly, was there any other finding or deliberation required of the IAA?
Was the IAA required to make a finding on the authenticity?
The applicant submitted that there were only two possibilities in relation to the authenticity of the warrant. If it was genuine, it would constitute a powerful and, according to the applicant, virtually irresistible corroboration of the applicant’s claims. Conversely, if the warrant was found to be fraudulent, it would not assist the applicant’s claims and might even undermine his credibility.
Given its importance to the applicant’s claims, he submitted that it was necessary for the IAA either to accept the authenticity of the arrest warrant, and then assess the truth of his claims and the extent to which he had a well-founded fear of persecution on that basis, or conversely, to make a finding that the warrant was fraudulent and then consider the impact of that finding on his claims. However, the IAA did not reach a conclusion on the authenticity of the arrest warrant but “sidestepped the issue” by noting it had concerns.
The applicant argued that in the context of the review, in which the IAA made a finding under s 473DD of the Act (as it then was), that it would consider the evidence of the warrant and the associated statutory declaration, and in which the IAA acknowledged that that evidence was “potentially determinative of the review”, the IAA was required to make a finding regarding the authenticity of the warrant. The applicant argued that it was not possible for the IAA to complete its statutory task of determining the applicant’s claims without adjudicating that issue one way or the other.
In support of this, the applicant relied upon WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 (WAIJ). In WAIJ, the appellant had relied on two documents. The first was a letter from the appellant to his sister and the second was a letter of dismissal from his employer. Both letters were in Persian and no translation was provided. Before the Tribunal, neither of the letters were discussed or considered. The appellant sought review and the matter was remitted by consent with a direction that the Tribunal give due consideration to the letters. Upon remittal, the Tribunal said this about the letters (at [12]):
…In relation to the letter purportedly from the applicant’s sister, I am of the view that it would have been a straightforward matter for the applicant to either write the letter herself, or to ask her sister to write the letter for her. I am also of the view that the letter of dismissal would have been an easy letter to manufacture, particularly by someone who had access either to a blank hospital letterhead or to another letter containing the letterhead. In relation to this particular letter, I note that at the hearing the applicant said the letter was on the hospital noticeboard and that her sister had gone to the hospital office to obtain the letter. However, in submissions provided after the hearing, the applicant’s adviser asserts that the letter provided to the Tribunal was taken from the hospital noticeboard. In my view, these letters do not overcome the problems I have with the applicant’s evidence and I place no weight on them as proof of the credibility of the applicants claims.
In considering the Tribunal’s treatment of the letters, the Full Court found (at [26]-[27]):
The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents “do not overcome the problems I have with the applicant’s evidence”.
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
Later, the Full Court found (at [40]):
…[M]atters the Tribunal described as implausible were not claims disproved by proved facts nor events so contradicted by commonsense as to be able to be dismissed as possible occurrences. The Tribunal engaged in speculation as to what it thought would have been a more likely course of events but it had no basis on which it could say that the events described by the appellant, and corroborated in the documents, could not have occurred. The Tribunal may not have been persuaded that the events had occurred but the Tribunal had no material on which it could convert such a doubt into a positive finding that the events had not taken place.
The Full Court concluded (at [52]-[53]):
The reasons provided by the Tribunal in relation to its rejection of the documents revealed that the Tribunal failed to act judicially in respect of that material. The Tribunal appears to have consider that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated. That was not a course open to a Tribunal acting judicially. There was no material before the Tribunal that permitted it to so dispose of the documents, and, thus, of the tendency of the documents to corroborate the appellant’s account.
It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant’s case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts.
The applicant also relied upon BFD17 v Minister for Immigration [2023] FCA 887 (BFD17) where Burley J stated (at [58]):
It is apparent that the particular circumstances of each case must be examined. It is not sufficient for a Tribunal to make emphatic findings adverse to the credibility of a party and then to eschew consideration of purportedly corroborating evidence.
The applicant’s case is not that in every case a decision-maker must always reach a definitive conclusion on the authenticity of a document, and the applicant accepts that what is necessary to discharge the review task will naturally vary from one case to another. It will depend on the role that the evidence plays in the case before the decision-maker. In this case, the applicant submits, the parameters were set by the IAA itself in its description of the significance of the warrant, notwithstanding that was for a different statutory purpose. Furthermore, acceptance of the genuineness of the arrest warrant corroborated the applicant’s evidence and it could have overcome the other concerns that the IAA had.
The Minister argued that the authorities did not support a contention that the IAA was required to reach a definitive conclusion on the authenticity of a document. The Minister submitted that BFD17 and WAIJ stood for no more than, notwithstanding any emphatic adverse findings on credibility, a decision-maker is required to give consideration to corroborative evidence. However, the Minister argued that principle was not applicable in this matter because the IAA did consider the arrest warrant and it was through its consideration of the warrant that it noted all of the different concerns that it held. The Minister cited SZTKV v Minister for Immigration and Border Protection [2014] FCA 903 at [25] (SZTKV) as support for the proposition that it is open to a decision-maker to disregard documentary evidence without embarking upon an inquiry as to whether the documents were genuine or not.
The Minister also relied upon WZAOF v Minister for Immigration and Citizenship [2012] FMCA 668 (WZAOF) where the Court stated (at [93]-[95]):
It is apparent from the Tribunal Decision that the Tribunal did consider the form and content of the Critical Court Documents, and that in doing so it observed discrepancies on the face of those documents which were inconsistent with both the evidence of the Mother and Daughter and offences which the country information disclosed as being the relevant offences for the conduct which the Mother and Daughter said had occurred, but which were different to the offences charged in the Critical Court Documents.
Due to the various inconsistencies and discrepancies the Court ultimately concluded that it would give the Critical Court Documents no weight. The question of weight to be given to evidence is a matter for the Tribunal.
The Tribunal did not conclude that the Critical Court Documents were not genuine. It indicated that this was one possibility, but arrived at no conclusion with respect to that possibility, but rather gave the Critical Court Documents no weight due to the discrepancies and inconsistencies to which it referred.
The Minister further relied upon BZO17 v Minister for Immigration [2017] FCCA 2085 (BZO17 [2017]) (at [36]):
Moreover, the second respondent considered the documents that were relied upon by the applicant to support his claims. I accept the first respondent’s submission that it was not necessary for the second respondent to come to a conclusion about the authenticity of those documents before it gave them little or insignificant weight. The second respondent approached the applicant’s claims in the way described by the first respondent – namely it considered all of the evidence before it and carried out a weighing exercise and fixed upon a conclusion. Taken at their highest, the applicant’s submissions must lead to the proposition that in the absence of a finding that corroborative documents are not genuine, an administrative decision maker must accept those documents and the evidence purportedly within them, despite the decision maker having other evidence about which it harbours doubts or concerns and which impact upon the overall weighing exercise to be undertaken by the decision maker. No authority was cited for that proposition. The weighing of various pieces of evidence is a matter for the administrative decision maker: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 580; Minister for Immigration and Citizenship v SZJSS[2010] HCA 48; (2010) 243 CLR 164 at [33].
This reasoning was upheld on appeal to the Federal Court in BZO17 v Minister for Immigration and Border Protection [2018] FCA 384 (BZO17 [2018]).
The Minister also submitted that it was significant that the IAA did not have any expert evidence from a qualified document examiner who could analyse the arrest warrant. In the absence of such evidence, the Minister argued that it was entirely open to the IAA to record its concerns with the arrest warrant, including that the details contained within it were vague and implausible, without making an emphatic finding that they must have been fraudulent. In support of this, the Minister relied upon AOC18 v Minister for immigration., Citizenship and Multicultural Affairs [2023] FedCFamC2G 591 at [26].
The parties were in agreement that the IAA did not make a finding that the arrest warrant was fraudulent or inauthentic. The controversy between the parties was rather whether the IAA was required to make such a finding. The Minister argued that the IAA did not need to make a finding of that nature. The Minister argued that the authorities they relied upon, namely SZTKV, WZAOF, BZO17 [2017] and BZO17 [2018], all held that a decision-maker is not obliged to make findings on the authenticity or otherwise of a document before giving it little weight. In this respect, the Minister argued that it is open to a decision-maker to note differences, implausibilities or inconsistencies about a particular document and to decide at that point to not give it weight.
Further, the Minister says it is a very serious finding to say that a court document is fraudulent, or that an applicant produced a fraudulent document (relying upon WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511, [2003] FCAFC 171 at [53]). In the absence of expert evidence, such as evidence from a qualified document examiner, it is entirely reasonable and rational for the IAA to not go that step further and find that an applicant has produced a fraudulent document. In that sense, it was open to the IAA to note that there were concerns with the document and to not give the document much weight. It could not accept that the applicant was subject to the charges he said he was without going one step further and finding that the applicant had produced a fraudulent document.
The Court agrees with the Minister that it was not incumbent upon the IAA to make a finding as to whether or not the arrest warrant was authentic. The Court does not agree with the applicant’s submission that if the IAA had accepted that the warrant was authentic, then the warrant corroborates the applicant’s narrative and the truth of his claims would therefore have to be accepted, and that in turn would overcome any misgivings that the IAA might have had about the plausibility of his story more broadly. The applicant’s submission that the only way to negate the corroborative evidence would be to find that it was fraudulent puts the matter too highly. In the Court’s view, the IAA did not have to make a finding that the document was fraudulent or inauthentic. The concerns the IAA had in relation to the arrest warrant may have been sufficient to ground a finding that the document was not sufficiently probative of the applicant’s claims without reaching a finding that the document was clearly fraudulent.
Furthermore, in the Court’s view, these concerns clearly could not properly ground a finding that the arrest warrant was fraudulent. The Court agrees with the Minister that a finding of fraud is a serious finding. The IAA did not have before it any evidence, expert or otherwise, that could give rise to a logical conclusion that the arrest warrant was fraudulent. That does not mean that the concerns raised by the IAA were of no moment. As the Minister submitted, it would be open to the IAA to record the concerns it held in respect of the arrest warrant and to give the document no weight.
Was the IAA required to make any findings otherwise?
The question then becomes whether the IAA was required to make any findings in respect of the arrest warrant in the absence of a requirement to adjudicate on its authenticity.
Whether the IAA is required to make a finding on the authenticity of a particular piece of evidence is dependent upon the circumstances of each case and the nature of the document. It may be sufficient, as stated by the Minister, for the IAA to state that it had concerns about a document and find that, because of those concerns, it was not persuaded that a document assisted an applicant. However, where a document assumes a critical centrality to an applicant’s claim, in circumstances where that document appears to address in almost pinpoint fashion the concerns raised by the delegate, it was an example of practical unfairness for the IAA to fail to engage with the document.
This matter is distinguishable from the authorities relied upon by the Minister, because in those matters, a clear decision was made to afford no weight to the impugned documents on the basis of the concerns held by the Tribunal or IAA. No such inference is available here. So much is clear from the IAA’s completely different treatment of the purported letters from the Parish Priest and MP. The IAA’s finding in relation to those documents was as follows (at [15]):
The applicant has provided a letter purportedly from the Parish Priest dated 20 December 2012 and an undated letter purportedly from the MP he supported in the 2012 Provincial Council election campaign. While they are on different letter heads, both letters contain the exact same text attesting that the applicant exercised full support in the campaign from 1 July 2012 to 5 September 2012 and that the applicant was threatened by unidentified persons ‘day and night and very often’ and that his life was not secure. I have concerns about these letters as they appear to embellish the extent to which the applicant was threatened, and significantly, because the body of the letters are identical, even with the Parish Priest self-identifying as the MP. I am not satisfied they are authentic; I give them no weight.
The distinction between the different treatment of the evidence is stark. It is not possible to make an inference that the IAA decided to afford no weight to the arrest document because of the concerns it raised. If that is what the IAA had decided to do, it is clear from its treatment of the impugned letters that it would have expressly said so.
Indeed, it is apparent that there is no actual finding, including any implicit finding, in respect of the arrest warrant. It is nothing more than a recording of concerns which just “float” without any explanation, contextualisation or development. Given the centrality to the applicant’s claims that the arrest warrant, or lack thereof, had become, it was antithetical to a fair hearing to deal with this document in such a lacklustre fashion.
Furthermore, it borders on irrationality to suggest that the document was concerning because it did not contain contextual details. If the reviewer had specialised knowledge of Sri Lankan court procedures, or if that information was contained within the country information, the reviewer did not make any reference to that. On that basis, the Court finds that the reviewer simply made an assumption as to what they expected to be in such a document. This assumption does not appear to have taken into account the parameters of the form itself, nor indeed the characteristics of a busy arrest court in any jurisdiction. Having reviewed the form, and the limited space contained therein, it is not surprising that nothing more than the applicant’s failure to attend court was recorded.
In the Court’s view, the IAA failed to properly engage with the document. The applicant’s claim was that he was subject to an arrest warrant because he had failed to attend court. That is precisely what this document purports to stand as evidence for. The IAA was required to consider if that document supported the applicant’s claim, and if not, why not.
Once accepting that the arrest warrant was “potentially determinative”, the IAA had to consider whether it was in fact determinative. However, the IAA did not make any findings whatsoever. All it did was raise concerns which were left suspended without any attempt at resolution. Because of this, the Court is in the dark as to where those concerns took the IAA. On a document of lesser importance, that may not have been fatal. However, the arrest warrant was central to the applicant’s claims. Importantly, it was the critical evidentiary difference between the applicant’s case before the delegate and the case before the IAA. It warranted more attention than the cursory treatment it appears to have received.
Accordingly, the Court finds that the IAA failed to complete its statutory task. Ground one of the amended application is made out albeit via a slightly different route.
Ground two
The applicant submitted that should the Court find that the IAA’s “concerns” regarding the arrest warrant at [22] constituted an implicit finding of fraud, it was unreasonable in the circumstances for the IAA not to put that allegation to the applicant and give him an opportunity to respond before making such a finding.
The applicant argued that Parliament has provided a mechanism for the IAA to afford its own measure of procedural fairness, where the circumstances so require, in the form to get new information from an applicant under s 473DC(3) of the Act (as it then was). The applicant argued that this matter is such a case, since the warrant had not been before the delegate and the IAA review was the first opportunity to put its authenticity in question. In that context, the applicant submitted that it was unreasonable in the circumstances for the IAA to make a fraud finding, which was ultimately dispositive of the review (in that the applicant’s claims would likely have been believed if the warrant had been accepted as authentic), without first exercising the power under s 473DC (as it then was).
The Minister agreed that the IAA did not make an implicit finding that the arrest warrant was fraudulent and simply expressed concerns. The Minister argued that those concerns then led to the IAA rejecting the corroborative value of the warrant (or in other words, giving it no weight). The Minister submitted that none of those findings required an implicit finding of fraud. The Minister argued that this ground should be dismissed on that basis alone.
Given the Court has found that the IAA did not make any express or implicit finding that the arrest warrant was not genuine, it is unnecessary to determine this ground.
The Minister is correct to raise that the parameters of procedural fairness are more constrained in Part VIA matters. However, that at its heart is intended to produce a regime that was efficient not to replace procedural fairness with procedural unfairness. The applicant was given notice by the delegate that, in the absence of a formal court document which identified him in person, his claim would not be successful. The applicant produced such a document. It is true that the IAA was not tethered to the findings of the delegate. But given the centrality of the document to the applicant’s principal claim, to do nothing with it other than express vague concerns, to fail to engage with the document in a meaningful way, to fail to invite the applicant to provide additional information as to why the document should be accepted, was inherently unfair.
That is not to say that in all matters where the IAA holds concerns about the probative value of a document, it is required to use its powers to obtain additional information. There may well be cases where a document raises obvious and significant concerns as to whether it is genuine. However, that should be clearly stated. There may be matters where a document which might be dubious would not assist the applicant in any event, or where the document is not sufficiently probative of the fundamental claims of the applicant. Again, that also should be stated. There may be matters where a delegate raises concerns with the authenticity of a document but gives the applicant the benefit of the doubt and where the IAA declines to do the same. The critical point in this case is that the document really became the focal point of the applicant’s case. It was the difference between the claim before the delegate and the IAA. It was put forward as a complete answer to the concerns raised by the delegate. In those circumstances, the applicant would be entitled to know whether the IAA did not accept the genuineness of the document.
However, given the Court’s finding in respect of ground one of the amended application, it is unnecessary to say anything further in respect of this ground.
CONCLUSION
The applicant has succeeded on ground one of the amended application.
The Act was amended significantly on 14 October 2024 following the commencement of the Administrative Review Tribunal (the ART). The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) made significant amendments to, and included transitional provisions relating to, a number of Commonwealth Acts, including repealing Part 7AA of the Act which dealt with the IAA and IAA decisions.
Part 3 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Cth) deals with the IAA and provides that this Court can do anything in relation to an IAA matter that it could have done prior to the commencement of the ART, including (importantly) remitting an IAA decision for reconsideration (see rule 11(3)). Further, where the Court remits a decision of the IAA to the ART, the proceeding for review by the ART is taken to be a proceeding for review of a reviewable protection visa decision under Part 5 of the Act (see rule 12(3)).
Accordingly, the decision of the Immigration Assessment Authority will be set aside and the matter will be remitted to the Administrative Review Tribunal for reconsideration.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 13 December 2024
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