BFR18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 87
•7 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BFR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 87
File number: MLG 655 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 7 February 2024 Catchwords: MIGRATION – Application for judicial review of decision of Immigration Assessment Authority, affirming decision not to grant applicant a protection visa – whether Authority made a finding based on unwarranted assumptions lacking a probative evidentiary basis – whether Authority unreasonably failed to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) to get new information from the applicant – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth) ss 5AA, 5J, 473CA, 473DC, 476 Cases cited: ABT17v Minister for Immigration and Border Protection [2020] HCA 34
BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94
DHQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 178
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DMO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 61
DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43
EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 90 Date of hearing: 7 September 2023 Place: Perth Counsel for the Applicant: Mr C Honnery Solicitor for the Applicant: Welcome Legal Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley ORDERS
MLG 655 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BFR18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
7 FEBRUARY 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 16 February 2018.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider according to law the matter referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Iraq who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the matter was referred to the Immigration Assessment Authority (Authority) for review. The Authority affirmed the delegate’s decision on 16 February 2018. The applicant now seeks judicial review of the Authority’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant advances two grounds of application which assert that the Authority decision is vitiated by jurisdictional error on the basis that the Authority:
(a)made a finding that was affected by unwarranted assumptions and lacked a proper evidentiary basis; and
(b)acted unreasonably in failing to exercise its discretion under s 473DC of the Migration Act to get new information from the applicant.
For the reasons explained below, I have found that both of the applicant’s grounds establish jurisdictional error in the Authority decision. I therefore issue a writ of certiorari to quash the Authority decision and a writ of mandamus to require the Authority to reconduct the review according to law.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant arrived in Australia in April 2013 and is an ‘unauthorised maritime arrival’ within the meaning of s 5AA of the Migration Act.
The applicant applied for the protection visa on 30 September 2016. The applicant’s claims for protection were set out in a signed statement dated 6 September 2016 which accompanied his protection visa application.
On 26 June 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection (protection visa interview). He provided a post-interview statement on 10 July 2017.
A delegate of the Minister made a decision refusing to grant the applicant a protection visa on 22 August 2017 and the matter was subsequently referred to the Authority in accordance with s 473CA of the Migration Act.
On 22 September 2017 the applicant’s representative provided a submission to the Authority.
The Authority affirmed the delegate’s decision not to grant the applicant a visa on 16 February 2018.
RELEVANT PARTS OF THE AUTHORITY DECISION
The grounds set out in the judicial review application address only one aspect of the applicant’s claims for protection. It is therefore unnecessary to summarise all of the applicant’s claims for protection and the whole of the Authority’s reasons for decision.
For the purposes of this application, it is sufficient to note that the applicant claimed that he would face harm in Iraq because he had previously sold alcohol and the Authority found that the applicant did not face a real chance of serious harm or a real risk of significant harm on this basis. The applicant claimed that he had received threats and faced harm in the past, including that he was shot at by a Shia militia while selling alcohol from his car in 2012.
The Authority rejected the applicant’s claim to have been shot at [43] of its reasons, where it said:
However I am not willing to accept that the applicant was shot at by a Shia militia while transacting an alcohol sale with a customer on the street in around May 2012. His claim concerning the circumstances surrounding the attempted shooting have differed significantly over time. In his SHEV application he claimed he received a threat letter and was then shot. In his SHEV interview he claimed he was shot and then received a threat letter. While I am willing to accept that the applicant may have difficulty recalling dates, I am not persuaded that any learning disability or symptoms of depression or PTSD account for the variation in the sequential order in which such significant events occurred. I also find it implausible that if he were being regularly threatened by the militia, as he suggests, he would sell alcohol in such an open way on the street with little regard for his own safety. Nor does his explanation, that his father’s diagnosis with a terminal illness has made him stressed and confused, overcome my concerns about the credibility of this claim.
Thus, it is evident that two of the Authority’s reasons for rejecting this claim were based on:
(a)inconsistencies in the applicant’s account of relevant events, in particular, about the sequence of events; and
(b)the perceived implausibility of the applicant’s claim that he would sell alcohol in an open way on the street with little regard for his own safety if he were being regularly threatened by the militia, as claimed.
As can be seen from the grounds of application set out below, the former aspect of the reasoning is the focus of ground 2 and the latter aspect of the reasoning is the focus of ground 1.
JUDICIAL REVIEW APPLICATION
By an amended application filed on 17 August 2023, the applicant raises the following grounds of application:
1.The Authority’s finding that the applicant’s claim to have been shot at by Shia militia was implausible was affected by unwarranted assumptions and lacked a proper evidentiary foundation.
Particulars
a)The Authority found it was implausible that if the applicant was being threatened by militia “he would sell alcohol in such an open way on the street with little regard for his own safety”: CB p 294 at [43];
b)The IAA’s reasoning was based on assumptions and speculation that the applicant was openly selling alcohol with little regard for his own safety that lacked a proper evidentiary foundation;
c)The applicant consistently claimed to have been inside his car and never to have left his vehicle when the shooting occurred;
d)The applicant was told during the SHEV interview that his shooting claim was accepted and there were no issues with his credibility, and the delegate’s decision was faithful to this, accepting, with reference to country information, that he was threatened and shot at as claimed: CB p 240;
e)Without making findings on factors that were not addressed in the SHEV interview or the delegate’s decision, there was not a proper basis for the Authority to find the shooting claim was implausible.
2.The Authority acted unreasonably in failing to exercise its discretion under s 473DC of the Act to get information from the applicant
Particulars
a) During the SHEV interview, the interviewing officer:
i.acknowledged the applicant’s inability to remember dates because of his learning difficulty and his stress;
ii. declined to explore issues raised by the applicant’s representative as to why he was getting mixed up in relation to the sequence of claimed events and effectively treated these discrepancies as inconsequential;
iii. advised the applicant, “I don’t have any concerns with your credibility. I’ll accept that you were selling alcohol, you’ve received threats, the timeline is hazy” (SHEV interview transcript pp 38-39, Q152) and
iv. Expressly informed the applicant that the attempted shooting assassination was accepted.
b) The delegate’s decision was faithful to these representations, finding:
i. the applicant’s learning difficulties, as elucidated in a letter from his counsellor (CB p 233) explained why some of his testimony at the SHEV interview in relation to the sequence of events was at odds with his written statement and “nonetheless, the events themselves he described were mostly consistent and no adverse inference is taken as a result”; (CB p 240)
ii. with reference to “numerous reports that alcohol sellers have been targeted and killed by Shia militia” that the applicant “was threatened and even shot at for selling alcohol in his hometown of Nasiriyah”: CB p 240.
c) The IAA decided not to seek further information from the applicant (CB p 286 at [9]), impugned the applicant’s credibility and rejected his claim to have been shot at by militia, reasoning (at CB p 294 [43]):
i. “the circumstances surrounding the attempted shooting have differed significantly over time” based on discrepancies in the applicant’s evidence as to the sequential order in which significant events occurred; and
ii.finding it was implausible that if he were being regularly threatened by the militia “he would sell alcohol in such an open way on the street with little regard for his own safety”.
d) In the particular circumstances of the case, it was legally unreasonable for the IAA to not exercise its power under s 473DC to provide the applicant with a reasonable opportunity to address:
i. the plausibility of the shooting claim, which the applicant was told was accepted and was likely to have additional information about; and
ii. discrepancies as to the claimed sequence of events, which the applicant and his representative were effectively told were inconsequential during the SHEV interview.
The evidence before the Court comprises a court book filed on behalf of the Minister on 28 February 2019 and an affidavit of Liz Hug filed on behalf of the applicant on 16 August 2023, which annexes a transcript of the applicant’s protection visa interview.
GROUND 1: DID THE AUTHORITY MAKE A FINDING BASED ON UNWARRANTED ASSUMPTIONS OR WITHOUT A PROPER EVIDENTIARY BASIS?,
By ground 1 as pleaded, the applicant asserts that a finding made by the Authority that the applicant’s claim to have been shot by the militia was implausible was based on the unwarranted assumptions that he was ‘openly’ selling alcohol on the streets ‘with little regard for his own safety’, which lacked a proper evidentiary basis. This does not accurately describe the implausibility finding as expressed by the Authority. The Authority did not expressly find that the applicant’s claim to have been shot at by the militia was implausible, but rather, offered as one of two reasons for not being willing to accept the applicant’s claim to have been shot at by a Shia militia, a finding that it was implausible that if the applicant were being regularly threatened by the militia, he would sell alcohol in such an open way with little or no regard for his own safety. The particulars of the ground accurately reflect the finding as expressed by the Authority. It may be that little turns on the distinction in how the implausibility finding is described, given that the implausibility finding as expressed by the Authority may give rise to an implicit implausibility finding as described by the applicant in his ground. However, for the avoidance of doubt, in assessing this ground, I have proceeded on the basis that the implausibility finding is that expressly articulated by the Authority.
In responding to this ground, the Minister submitted that making ‘unwarranted assumptions’ is not a freestanding ground of judicial review, while acknowledging that it is possible that ‘unwarranted assumptions’ may give rise to illogicality or irrationality, or demonstrate a failure to consider material.
The Minister also responded to the applicant’s ground as a ‘no evidence’ ground. I do not understand the applicant to be pressing this ground as a traditional no evidence ground and Counsel for the applicant expressly stated at the hearing that this is not a no evidence ground. Rather, I understand the applicant’s ground to be advanced on the basis of the Full Court’s explanation in BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94 (BZD17) at [36] that ‘[u]nwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence’.
The applicant’s claims as articulated by him
In a statement dated 6 September 2016, which accompanied his protection visa application, the applicant claimed that:
[W]hen I was in my car handing over alcohol to a customer out the window, I noticed someone following me on motorcycle with a passenger. The passenger shot at the back of my car with a machine gun. Around 6 or 7 bullets ended up in the back of my car. I replaced the back of my car straight away so my father would not worry.
In his protection visa interview, the applicant said:
I was driving (indistinct), and I was delivering some alcohol to one of my clients, and they came with me, they opened fire at me, but all the bullets attacked my car boot, did not affect me.
Later in his protection visa interview, the applicant said:
… I kept on selling and until one day, I was going, doing some business, driving through Bagdad streets, and there were – there was an attempt to assassinate me…
I had like – gave an appointment, a date for another guy to meet him over there, to do some business. I was waiting in the car and there was this motorcycle that came next to me. One was driving and one was sitting behind him and they tried to get me in the car. So I fled there.
The Authority’s finding
As can be seen from the extract of [43] of the Authority’s reasons, set out above, one of the Authority’s reasons for rejecting the applicant’s claim to have been shot at was that the Authority considered it to be ‘implausible that if he were being regularly threatened by the militia, as he suggests, he would sell alcohol in such an open way on the street with little regard for his own safety’.
Relevant authorities
As the Full Court (Yates, Wheelahan and O’Bryan JJ) explained in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [56] (emphasis in original):
A finding that an alleged event is implausible is ordinarily a finding that it is inherently unlikely to have occurred; adopting the language of the High Court in [Republic of Nauru v WET040 (No 2) (2018) 362 ALR 235; [2018] HCA 60], the event does not accord with the probabilities of ordinary human experience. It is not necessarily a finding that that event is beyond human experience of possible occurrences in the sense that it could not have occurred: that formulation tends to overstate what is ordinarily meant by “implausible”.
The applicant referred to the Federal Court’s (Stewart J) judgment in EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 (EVI19) as an example to explain aspects of his ground. In that case, the Authority found that it was not credible that the appellant could escape custody on his way to a court hearing from prison and not be apprehended, even if he was unhandcuffed due to bribery. This finding was said to be inextricably linked to the Authority’s finding that the appellant had provided little detail about the alleged incident. Justice Stewart explained at [69]-[71] (emphasis in original):
69.…[T]he mental picture that one conjures up in the mind when told about an escape from custody will differ wildly from person to person depending on the assumptions under which the person is labouring.
70.For example, one might imagine, on one extreme, that the appellant was being transferred under guard by multiple, perhaps armed, officers in a secure vehicle on pre-cleared carriageways. Such a construction of events would of course be based upon certain assumptions about the kind of security that would attach to a person in the appellant’s circumstances. If that is the image that is conjured up in one’s mind, then the appellant’s account of his escape would indeed sound implausible without further detail as to how it is that he managed to escape and avoid detection thereafter. However, those assumptions may or may not be valid.
71.Equally, on the other extreme, one might imagine that the appellant was being transferred under the guard of the very shift soldier that opened his handcuffs in a sedan on busy streets where he could simply disappear into the crowd. On such a construction, which is indeed open on the material, and the assumptions on which it is based, there is nothing implausible about the appellant’s account of his escape. If those assumptions are valid, then there could not be much further detail that the appellant could provide.
His Honour then found at [81]:
… Without making any findings in relation to, for example, the security oversight of persons such as the appellant being transported to court, whether it was the bribed shift [soldier] or instead a group of officers that were responsible for the appellant’s transfer to court, or the effectiveness of bribery in Iran, it is unclear how the impugned implausibility finding could be made by the Authority other than by mere speculation and conjecture.
Counsel for the Minister submitted that EVI19 turned upon the manner in which the Iranian government conducted its law enforcement operations and that is a factual matrix that is wholly removed from the present case, which does not require one to know anything in particular about Iraq or the Iraqi authorities or the manner in which the Iraqi government conducts its business to understand the applicant’s evidence about selling alcohol from his car. In my view, a comparison of the factual circumstances of the present matter and EVI19 is not required because each case will necessarily turn on its own facts. However, the process of reasoning in EVI19 is in some ways relevant to the resolution of the present case.
The applicant further relied on Judge Given’s judgment in DHQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 178 (DHQ18) as another example of where the Court found that the decision-maker made a finding based on unwarranted assumptions. In that case, the Tribunal rejected the applicant’s claim to have attended a protest. The Tribunal found the applicant’s claim to be implausible ‘given that he claims he ran into a narrow lane he was faced by special forces security personnel on motorbikes, and was able to throw away the camera on which he had allegedly taken incriminating photographs of the protests without being seen by the police’. The Tribunal did not accept that the applicant would be able ‘to undertake such an action in full view of the police without it being noticed’. Judge Given articulated a number of reasons for explaining her finding that the Tribunal exceeded the limits of proper and logical fact finding, but one that Counsel for the applicant emphasised in his submissions in the present case was that the applicant in DHQ18 had not claimed to be in ‘full view’ of the security forces at the time he disposed of the camera and ‘full view’ was the Tribunal’s expression. This is said to be relevant to the Authority’s finding in the present case that the applicant was selling alcohol in such an open way with little regard for his own safety, which the applicant submits was the Authority’s expression, not his.
The Minister referred to Perram J’s judgment in BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 (BOH17) in which his Honour considered the jurisprudential bases of three judgments in which the Court had found jurisdictional error on the basis of unwarranted assumptions and then said at [7]:
On the current state of the authorities, it seems to me that the better view is that there is no freestanding ground of unwarranted assumptions. However, the making of unwarranted assumptions as part of a credit finding may be reviewed on rationality grounds (DAO16 [v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2]) or because the decision maker has failed to duly consider the question raised by the material (WAGO [of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 656; [2002] FCAFC 437] and BZD17). For myself, the former test is easier to apply in practice in the sense that it appears less conclusory.
His Honour then set out some authority in relation to illogicality and irrationality and continued at [8]:
Thus, a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis…
The Minister referred to Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 to explain that not every illogical finding or unwarranted assumption will lead to jurisdictional error. In that case the Full Court (Allsop CJ, Besanko and O’Callaghan JJ) said at [34]:
Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction.
Was the Authority decision based on unwarranted assumptions that lacked an evidentiary basis?
The applicant submitted that his consistent claims to have been inside his car at the time of the shooting and to never have left his vehicle did not provide an evidentiary basis for the finding that he was selling alcohol in ‘such an open way on the street’ with ‘little regard for his own safety’. The applicant submitted that the plausibility of the claim turned on factors such as the openness of the location where the applicant conducted the transaction, how visible he was in his car, and how, or if, the alcohol was packaged or concealed. The applicant highlighted in his submissions that he was not asked in his protection visa interview about any of these matters because the interviewer advised the applicant that he did not have any concerns about the applicant’s credibility and that he accepted there was an attempted assassination. The applicant submitted that without inviting him to address these issues, or making any findings on these factors, it was not open to the Authority to find that the applicant’s claim was implausible based on his evidence. Rather, the finding was based on speculation and conjecture and predicated on unwarranted assumptions.
The Minister submitted that there was no illogicality in the Authority’s finding that the applicant had been selling alcohol in an open way, given that the applicant’s evidence was that he was selling alcohol out of his car on the streets. The transactions were taking place in public and therefore it was not irrational for the Authority to infer that others could see what the applicant was doing. The Minister also submitted that it was not irrational for the Authority to conclude that the applicant was selling alcohol on the street with ‘little regard for his own safety’, given that the applicant had claimed that despite threats from the militia, he did not pay any attention to them or give any importance to them, and he kept on selling.
In the particular circumstances of this case, I consider that the Authority’s finding that it was implausible that, if the applicant were being regularly threatened by the militia as claimed, he would ‘sell alcohol in such an open way on the street with little regard for his own safety’ was made based on unwarranted assumptions that did not have a proper evidentiary foundation. While there is some dispute between the parties as to whether the applicant needs to establish that the Authority’s finding was illogical or irrational, it is unnecessary to resolve that dispute in the present matter, because in all the circumstances, I also consider the Authority’s finding to be illogical or irrational.
The description of the applicant’s claim as being one in which the applicant was selling alcohol in an ‘open way on the street’ and the suggestion that the applicant had ‘little regard for his own safety’ were the Authority’s words, not the applicant’s words.
The applicant’s evidence was that he attended an appointment with a client to deliver alcohol. His evidence about where the transaction took place was that it took place on Baghdad streets and his evidence as to how the transaction took place was that he handed the alcohol to his customer out of his car window.
As observed by Stewart J in EVI19 at [69]-[71], the mental picture that one may conjure up in relation to evidence that is lacking in detail can differ wildly from person to person depending on the assumptions that they make.
In the present case, the applicant’s evidence might conjure up an image of the applicant quite obviously and brazenly handing out alcohol from his car in the middle of a very busy street where he might be readily observed by a large number of people who would easily be able to identify the applicant and understand the nature of the transaction. Another image that may be conjured up by the applicant’s evidence is one of the applicant discretely passing alcohol to a customer from his car, in a way that might limit the opportunity for people to be able to accurately identify the applicant or understand the nature of the transaction (for example, by packaging the alcohol in a way that would not readily allow it to be identified as such) in a quiet street of Baghdad with little pedestrian or vehicular traffic. And, of course, there may be many possible variations of these two extremes.
The Authority’s finding of implausibility was based on its assumptions that the applicant was selling alcohol ‘openly’ and that he had ‘little regard for his own safety’. The Authority did not provide reasons for either of these assumptions, and I am unable to discern from the Authority’s reasons how it came to make these assumptions. It is not clear what inferences the Authority drew in making these assumptions.
I do not accept that the evidence identified by the Minister provides an evidentiary basis for the Authority’s assumptions or a logical and rational basis for its implausibility finding. The simple fact that the transaction took place in a public place (a Baghdad street) does not mean that the applicant was selling alcohol ‘openly’. A person may engage in an act in a public place while still attempting to act covertly, not openly. Likewise, the evidence that the applicant did not place great importance on threats from the militia and kept selling alcohol does not indicate one way or the other whether he had little regard for his own safety. It appears from the applicant’s evidence that he was aware that the sale of alcohol was illegal, having previously been imprisoned for selling alcohol, but there is limited evidence of whether or not he took precautions for his own safety, and if so, the nature of those precautions.
In circumstances where:
(a)the evidence before the Authority did not clearly indicate one way or another whether the applicant’s conduct in selling alcohol from his car could accurately be described as selling alcohol in an ‘open way’ and where there was a lack of detail in the evidence before the Authority as to what, if any, measures the applicant took to protect his safety; and
(b)where the Authority offered no reasons to explain why it considered the applicant to be selling alcohol in an ‘open way’ with ‘little regard to his own safety’,
I accept the applicant’s submissions that the finding made by the Authority was based on ‘speculation and conjecture’ (citing EVI19 at [78]-[81] and [91]-[92]).
I accept the applicant’s submission that it is relevant that he was not asked to provide additional detail about these matters in his protection visa interview and that the delegate told the applicant during the interview that the delegate accepted the applicant’s claim to have been shot. The Authority could have exercised its discretion to invite the applicant to provide new information about his claim to have been shot, in order to fully understand the manner in which the applicant claims that the alcohol transaction took place at the time of the alleged shooting incident. But it was not open to the Authority to find that it was implausible that the applicant conducted an alcohol sale transaction in a particular manner, without making findings, drawing inferences or giving reasons to support its assumptions that the applicant was selling alcohol openly with little regard to his own safety.
To the extent that BOH17 suggests that it is appropriate to consider this matter through a rationality lens, I make the following observations:
(a)As indicated above, the Authority did not provide any reasons for its assumptions and therefore I cannot be satisfied from the Authority’s reasons that the decision had an evident and intelligible basis.
(b)The Authority’s finding was that it was implausible that, if the applicant had received threats from the militia, he would have sold alcohol in such an open way with little regard for his own safety. In other words, the Authority found it was implausible (that is, inherently unlikely, or something that does not accord with the probabilities of ordinary human experience) that the applicant would have sold alcohol in a particular manner. In these circumstances, it was incumbent on the Authority to accurately identify and understand the manner in which the applicant conducted the particular transaction. Where there was a lack of detail in the evidence about the precise circumstances of the transaction, a logical and rational decision-maker could not rationally infer, without more, that the transaction was conducted in an open manner simply because it occurred in a public place.
(c)Nor could a logical and rational decision-maker infer that the applicant had little or no regard for his own safety simply from (on the Minister’s case) an expression from the applicant that he did not, prior to the shooting, place importance on the threats he received from the militia and that he continued to sell alcohol. This evidence does not, of itself, show that the applicant did not have regard for his own safety. On its face, this evidence shows that he disregarded threats which (on his evidence) had been received for some time and had not been acted on previously by the militia, but says nothing about what safety precautions, if any, he took to protect himself while conducting the transaction.
Does the Authority’s implausibility finding give rise to jurisdictional error?
The Minister submitted that even if there were some illogicality in the Authority’s reasoning, it would not result in the characterisation of the whole decision as illogical because the Authority decision was not principally based on whether or not the applicant sold alcohol openly, but rather on:
(a)an acceptance that the applicant would have a well-founded fear of persecution for reason of selling alcohol, but a finding for the purposes of s 5J(3) of the Migration Act that he could take reasonable steps to modify his behaviour and avoid a real chance of persecution by ceasing to sell alcohol; and
(b)the fact that in the six months after the applicant ceased selling alcohol, he was not approached by the Shia militias.
I accept Counsel for the applicant’s submission in response that the applicant had advanced two distinct claims for protection, one based on a fear of harm because he would sell alcohol in the future and one based on a fear of harm as a person with an existing risk profile with the militia, based on his past conduct (including the matters relevant to the shooting incident). The Authority’s finding for the purposes of s 5J(3) is relevant to the former claim but not the latter.
The Authority’s finding that the applicant would not face harm from the Shia militias for having sold alcohol in the past is set out at [51] and [52] of its reasons. Part of the Authority’s reasoning reads:
Apart from the May 2012 attempted shooting, which I have not accepted occurred, the applicant does not claim that once he stopped selling alcohol he was approached by Shia militias either in his home town of [location A] or at his sister’s home in [location B] in the more than six months that he remained in the country.
The Authority’s finding at [44] is also relevant. In that paragraph, the Authority said:
Nor do I accept that at the time the applicant departed Iraq in January 2013 he was of adverse interest to Shia militias, including the al-Mahdi or the al-Haq. I note his own evidence that he did as the militias demanded and stopped selling alcohol after they threatened him. He also remained home for a period after he stopped selling alcohol and then spent six or so months at a sister’s house in [location B] without adverse consequences. I further note that he has not claimed that the militias approached his family regarding his whereabouts during this period or since he has been in Australia.
The applicant submitted that the shooting incident was a key aspect of his claim to face harm from the militia on account of his past activities. In his submissions to the Authority, he said:
As someone who has previously been convicted of selling alcohol, who was given his last warning by the militia and who they tried to execute, it is submitted that the militia are unlikely to forgive the Applicant’s previous offences against Islam and will feel even more justified given the heightened level of alcohol prohibition in finishing their execution of him.
The Minister submitted that the Authority’s finding about the claimed shooting was, in the context of this decision, unimportant and not of significance, because the Authority’s reasons turned on a finding that he was not of interest to the Shia militia when he departed Iraq because he was not bothered by the militia in the six months after he stopped selling alcohol.
At face value, it may seem as though the Authority has provided an independent reason or reasons for finding that the applicant would not face a real chance of serious harm by reason of having sold alcohol in the past. However, I do not consider that the Authority’s findings that the applicant was not approached by the militia after he ceased selling alcohol and was not of interest to them at the time he left Iraq can be divorced from its rejection of the shooting incident. If the Authority had accepted the shooting incident occurred, then it may have considered other issues such as any steps that the applicant took to avoid detection by the militia, whether the militia would have been able to locate the applicant at his sister’s house or whether the reason the applicant did not receive further threats was because the militia did not know where he was. This may, in turn, have affected the Authority’s assessment of the risk of harm the applicant would face in the reasonably foreseeable future on account of his past conduct and profile.
I therefore find that the error of the Authority in relation to its consideration of the shooting incident (whether described as the making of unwarranted assumptions without a probative basis in the evidence, or illogicality or irrationality) affected the whole of the Authority decision and amounts to jurisdictional error.
GROUND 2: DID THE AUTHORITY ACT UNREASONABLY IN FAILING TO EXERCISE THE DISCRETION IN S 473DC OF THE MIGRATION ACT?
By ground 2, the applicant contends that the Authority acted unreasonably in failing to exercise the discretion in s 473DC of the Migration Act before making adverse credibility findings against the applicant.
Relevant claims advanced by the applicant
The applicant claimed that he had been harmed in the past because he sold alcohol.
In a statement dated 6 September 2016, which accompanied his protection visa application, the applicant referred to being arrested for selling alcohol in 2011, sentenced to a short prison sentence and being required to pay a fine. He then continued at [14] to [16] of his statement:
14.After I was released from prison, I needed money again as I had to pay the fine and support my family. In early 2012, I started receiving threatening phone calls from different militias every three days or so. In the first phone call, the caller said that he was from al-Mahdi. I believe that the other calls may have been from al-Mahdi or al-Haq. I also received letters with death threats. I have provided one of these letters with my application.
15.In about May 2012, I received a call from a stranger, accusing me of selling alcohol and saying ‘I condemn you according to the Koran and Sharia law. The penalty is death if you do not stop.’ Not long after that day, when I was in my car handing over alcohol to a customer out the window, I noticed someone following me on motorcycle with a passenger. The passenger shot at the back of my car with a machine gun. Around 6 or 7 bullets ended up in the back of my car. I replaced the back of my car straight away so my father would not worry.
16.I got a call after this incident. The person referred to the incident and said: ‘If you insist on doing this business, we will be your enemy and Allah will be your enemy too.’
In his protection visa interview, the applicant said that he started to receive threats in 2011, which gradually became very serious. The applicant explained:
What happened is they started with the telephone, so they started like calling me, ‘We’re going to kill you. If you don’t give up this job we’re going to do this and that. We’re going to take your family, we’re going’ – all these things. And I used to answer them rudely and, you know, whatever they said just answer them back. I did not take it seriously. But then it came to a state that they send a piece of paper to my home and it has written on it that they have already made the decision to kill me, and this is when I took it serious.
Later in the protection interview, the delegate asked the applicant about the threat letter with the bullet, and the applicant said:
And before that threat letter they tried to kill me. I was taking – I was driving (indistinct), and I was delivering some alcohol to one of my clients, and they came with me, they opened fire at me, but all the bullets attacked my car boot, did not affect me. And then after that the letter came.
The delegate then raised some concerns that the information the applicant was giving at the interview was inconsistent with the information in his statement. Following a break, the applicant expressed concerns about feeling unwell and concerns about the quality of the interpretation at the interview. The delegate was prepared to reschedule the interview, apparently on the basis that the applicant was ‘agitated and unwell’. However, the interview proceeded and the applicant was invited to explain his timeline. He did so in the following way:
So I started selling alcohol in 2010 because I have a family and the financial situation wasn’t good.
…
I stayed like this until 2011 and then the police came and they found out that I’m selling alcohol. They detain me, they took me to prison. It was on a Friday and Friday/Saturday is a public holiday so we couldn’t do anything. On Sunday, I went to court and I was sentenced to one month imprisonment. I served that, then I got released with a bond or with a fine. So I paid the money and I got out.
…
And after that I started receiving threats from the militia. There are so many militias over there. One of them is (indistinct), the other one is Asaib or the Righteous and I started receiving messages on the mobile, many of them. They kept on calling me and I never – I didn’t give them any attention, I didn’t pay any attention to them or give them any importance and I kept on selling and until one day, I was going, doing some business, driving through Bagdad streets, and there were – there was an attempt to assassinate me, assassinate me.
…
I had like – gave an appointment, a date for another guy to meet him over there, to do some business. I was waiting in the car and there was this motorcycle that came next to me. One was driving and one was sitting behind him and they tried to get to me in the car. So I fled there.
…
I received this letter, they sent me this letter. It’s like a sentence.
…
So (indistinct) after they sent this, that means that’s like they sentenced me to death: ‘You are selling alcohol in a Muslim and a Shia area. You don’t do that’…
The delegate then clarified with the applicant whether the claimed shooting happened before or after he received the letter and the applicant replied:
Yes, the shooting happened before the letter. Because I escaped that shooting, they sent me the letter at home, that, ‘You have been sentenced to death’, and after that I fled to the [location B].
The delegate also invited the applicant to comment on the inconsistency between the applicant’s written and oral claims as to whether the threatening letter was provided before or after the shooting. The applicant responded:
I don’t know what to say. Things are all mixed up on me, it’s been very hectic on me. My father is very sick. He’s been diagnosed with a terminal illness with a very bad disease in his throat and they have removed his voice gland and they have an opening over there and I’m very stressed about it. I can hardly sleep and like today there is this interview. Last night I didn’t sleep at all.
Shortly after this, the applicant’s representative asked the delegate:
… would you like to know from [the applicant] how many threat letters he received, how many phone calls he received and perhaps that’s why he’s getting mixed up?
The delegate declined this invitation and then proceeded to make representations to the applicant (discussed below) and to raise other concerns with the applicant that are not material to this judicial review application.
Representations made by the delegate during the protection visa interview
The delegate then made various representations to the applicant about what the delegate accepted and that the delegate was not concerned about the applicant’s credibility. These representations were made in the following terms:
… because of your inability to remember dates correctly because you’ve got a learning difficulty and because of the stress that you’re going through with your father, with this application and the previous five years, I’ll just accept without any further requirement from you to prove that you have trouble remembering timelines.
…
Yes, so in combination with that your ability to maybe remember all the details, all the letters and all the things you’ve got and when you got them, you’re probably not going to be able to articulate it properly and I’ll accept that.
…And I can accept you received threats, the number of threats, whether or not you can tell me is I suppose in a way not important. What I can accept is you were threatened more than once. So there’s no need for you – I’ll accept it uncritically, okay?
…
Now, it’s too hard to determine when all of these events have happened but they’ve happened in either 2011 or 2012… So even though you claim there was a threat – sorry, that you had threats and that you also – there was an attempted assassination, I can accept that those events occurred…
…
I don’t have any concerns with your credibility. I’ll accept that you were selling alcohol, you’ve received threats, the timeline is hazy.
The delegate then expressed concerns as to whether the applicant would face a chance of harm in the future, given the relevant test is forward looking.
Information provided by the applicant after the protection visa interview
While the applicant provided further submissions and information after the protection visa interview, understandably, the additional information he provided primarily addressed the reasons he believed he would face a risk of harm in the future and did not in any way clarify the number of threats received or whether the written threat or shooting incident happened first.
One of the documents provided by the applicant after the protection visa interview is relevant to this ground of application. That document is a letter from a counsellor dated 17 July 2017. The letter explained that the applicant presented with significant symptoms of depression and post-traumatic stress disorder (PTSD). The letter indicated that the applicant ‘suffers from significant short term memory impairment’ and ‘has difficulty recalling dates for the events in the past’.
Relevant findings by the delegate and the Authority in relation to the applicant’s claims
The delegate accepted that the applicant had been threatened and shot at for selling alcohol. The delegate made the following observations about the inconsistency in the applicant’s evidence:
The applicant had difficulty remembering when events occurred and some of his testimony at the Protection visa interview in relation to the sequence of events was at odds to the events described in his written statement of claims. It was also indicated by the applicant and his representative that he had what was described as “learning difficulties” and this was why he could not remember details of dates or sequence of events. A letter from a counsellor was also provided following the interview supporting this assertion. I can accept this explanation, but nonetheless, the events themselves he described were mostly consistent and no adverse inference is taken as a result.
As indicated above, the Authority took a different approach and, at [43] of its reasons, rejected the applicant’s claim to have been shot at by a Shia militia while transacting an alcohol sale in the street. The reasoning of the Authority relevant to this ground is that:
His claim concerning the circumstances surrounding the attempted shooting have differed significantly over time. In his SHEV application he claimed he received a threat letter and was then shot. In his SHEV interview he claimed he was shot and then received a threat letter. While I am willing to accept that the applicant may have difficulty recalling dates, I am not persuaded that any learning disability or symptoms of depression or PTSD account for the variation in the sequential order in which such significant events occurred.
This suggests that the significant difference in the applicant’s claims regarding the circumstances surrounding the alleged shooting, which caused the Authority to reject his claim, was whether the applicant received the written threat before or after the shooting incident.
The Authority’s discretion to get new information
Section 473DC(1) of the Migration Act provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, fet any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
The Authority is required to act reasonably in its exercise or non-exercise of the discretion in s 473DC of the Migration Act: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21]; ABT17v Minister for Immigration and Border Protection [2020] HCA 34 (ABT17) at [3]. Assessing whether the Authority has acted unreasonably is invariably fact dependent and requires an evaluation of the evidence in the particular case before the Court: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [42]. However, past cases can provide some guidance on the types of circumstances in which the Authority may be found to have acted unreasonably.
There have been some cases in which the Authority has been found to have acted unreasonably in failing to exercise its discretion to get new information or in failing to consider the exercise of that discretion before making adverse credibility findings. Two such cases referred to in the parties’ submissions are ABT17 and DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43 (DPI17).
In ABT17, the High Court identified that where an applicant attends a protection visa interview with the Minister’s delegate, which is audio recorded but not video recorded, and the audio recording is provided to the Authority as part of the review materials, the Authority is not able to examine for itself the totality of the information available to the delegate, because it does not have a visual impression of how the applicant appeared during the interview: ABT17 at [13]. The High Court found that this type of informational gap relating to the applicant’s demeanour has the potential to impact on the Authority’s assessment of the credibility of the account given by the referred applicant at the protection visa interview, which has the potential to impact on the Authority’s overall assessment of the applicant’s credibility: ABT17 at [14]. The High Court said at [25]:
… 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.
In applying that principle, the High Court found that the Authority acted unreasonably in failing to invite ABT17 to attend an interview to assess his demeanour before rejecting his account of being detained, beaten and sexually tortured, which had been accepted by the delegate, on the basis of the Authority’s own impression of how the applicant sounded on the audio recording of the protection visa interview.
In DPI17, the visa applicant’s claim that he had been sexually assaulted by Sri Lankan officials was an important element of his protection claim. The delegate accepted that the applicant had been tortured and sexually assaulted by Sri Lankan officials on at least two occasions. The delegate told the applicant during his protection visa interview that his claim to have been sexually assaulted was accepted, noting that she had watched DPI17’s body language and delivery, and that discrepancies or inconsistencies in his account were not consequential. The Authority found that DPI17 was not the victim of sexual assault, based on inconsistencies in his evidence. DPI17 claimed that the Authority acted unreasonably in not considering the possible exercise of its discretion in s 473DC, and the appeal proceeded on the basis that both parties accepted that the Authority had not considered the possible exercise of that discretion. The Full Court found that the Authority had acted unreasonably in the circumstances of that case in failing to consider the possible exercise of its discretion in s 473DC of the Migration Act, taking into account considerations such as:
(a)the subject matter of the impugned narrative (at [125] per Mortimer J);
(b)the importance of that narrative to DPI17’s claims for protection (at [125] per Mortimer J);
(c)the importance of observing and hearing an individual recount such events in assessing the individual’s credibility and the delegate’s reliance on her assessment of DPI17’s demeanour (at [46] per Griffiths and Steward JJ; at [125] per Mortimer J);
(d)the fact that the delegate accepted the narrative on the basis of her impression of DPI17’s presentation and demeanour during the interview (at [125] per Mortimer J) and the Authority’s awareness of this positive assessment of demeanour (at [46] per Griffiths and Steward JJ);
(e)the lack of another sufficient independent evidentiary basis to support the Authority’s finding without inviting DPI17 to attend an interview with the Authority (at [46] per Griffiths and Steward JJ); and
(f)that the Authority’s assessment of the inconsistencies was at odds with the delegate’s representation that the discrepancies were not major, which presumably led to these not being addressed in submissions (at [47] per Griffiths and Steward JJ).
The Authority’s refusal to exercise its discretion to get new information in the present case
The applicant provided a submission to the Authority in which he requested an opportunity to respond if the Authority proposed to make a decision that was adverse to the applicant. The Authority acknowledged this request, but declined to invite the applicant to provide new information, saying at [8] and [9] of its reasons:
8. The IAA submission also states ‘[i]f the Authority proposes to make a decision adverse to the applicant, an opportunity to respond to particulars is requested’.
9. The IAA is a limited form of review. In limited circumstances it may conduct an interview to obtain new information or provide an opportunity to comment on new information that may be adverse. The statutory scheme does not provide for a right to a hearing. In the assessment of this application I have had regard to the referred information and the information provided in the IAA submission. I have not sought or obtained any new information. Considering all the circumstances, I am not satisfied the circumstances warrant the IAA conducting an interview with the applicant.
It can be inferred from this paragraph that the Authority considered whether or not it should exercise its discretion to get new information but decided not to exercise that discretion. The reasons given by the Authority shed little, if any, light on why the Authority considered that the circumstances of the present case did not warrant an interview. This is not a criticism of the Authority, as the Authority is not required to give reasons for its procedural decisions: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [16]. In the absence of meaningful reasons, in assessing whether the Authority’s failure to invite the applicant to an interview was unreasonable, I look to the surrounding facts and circumstances.
Did the Authority act unreasonably in failing to exercise its discretion under s 473DC of the Migration Act to get new information?
The applicant submitted that the Authority’s decision not to exercise its discretion in s 473DC of the Migration Act to invite him to an interview, before making the adverse credibility finding at [43] of its reasons, was legally unreasonable in the light of:
(a)the interviewer at the applicant’s protection visa interview taking the issue of credibility off the table and advising the applicant during the interview that he did not have any concerns with the applicant’s credibility;
(b)the interviewer advising the applicant at his protection visa interview that he accepted the shooting occurred;
(c)the interviewing officer curtailing discussion of the sequence of events that was ultimately impugned by the Authority, and declining the applicant’s representative’s offer to explore issues to clarify why the applicant was getting mixed up;
(d)the interviewing officer, who had the benefit of the applicant’s demeanour, taking into account this inability to articulate his claims properly due to his learning difficulty and the stress he was experiencing; and
(e)the delegate’s decision reflecting these representations, accepting the applicant’s main factual claims, and not impugning his credibility.
The Minister submitted that the applicant relied heavily in advancing this ground on DPI17, and there are some important differences between that case and the present, including that:
(a)In DPI17 the ground of review was whether the Authority acted legally unreasonably in failing to consider exercising the discretion in s 473DC, whereas in the present case the Authority considered whether to exercise the discretion. The ground in the present case relates to whether the Authority acted unreasonably in failing to exercise the discretion in s 473DC, which may be harder to establish than it is to establish that the Authority unreasonably failed to consider the exercise of the power. This was said to be because the assessment of legal unreasonableness takes colour from the statutory context, which includes s 473DC(2), which provides that the Authority does not have a duty to get or request new information, and that Part 7AA contemplates a limited review on the papers. The Minister also referred to Mortimer J’s (as her Honour then was) observation in DPI17 that ‘there may have been more than one reasonably open conclusion on whether the s 473DC power should have been exercised’ (at [116]).
(b)Unlike in DPI17, this is not a case where the delegate accepted the inconsistencies on the basis of the applicant’s demeanour. Rather the delegate in the present matter accepted the applicant’s claims on the basis of expediency because the delegate thought that due to the applicant’s learning difficulties, it would be too hard for the applicant to satisfy the delegate with respect to the timing issues, when the delegate was plainly concerned by another issue, being the absence of risk in the future.
The Minister further submitted that the Authority did not act legally unreasonably in failing to exercise the power in s 473DC because the finding on whether the applicant was shot was not of central or dispositive importance.
In my view, the Authority’s failure to exercise its discretion to invite the applicant to an interview to give new information was legally unreasonable, based on the cumulative impact of the factors identified by Counsel for the applicant.
The delegate accepted the applicant’s credibility. I do not accept the Minister’s submission that the delegate simply proceeded on the basis of expediency. The delegate did have some concerns about the applicant’s evidence as to the timing of events, but ultimately, the delegate accepted that while there were issues with timing, the applicant had been consistent in his claim of the shooting incident and the delegate represented that the applicant’s credibility was accepted.
The Authority was not bound to make the same assessment of the applicant’s credibility as that made by the delegate. The different findings of the delegate and the Authority in relation to the applicant’s credibility do not, of themselves, give rise to legal unreasonableness. As Thawley J explained in DMO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 61 at [77]-[78]:
77. The appellant, who was represented, must have known that the Authority might take a different position to the delegate, even on issues which the delegate had accepted. As Mortimer J observed in DPI17 at [118]:
The failure to consider whether to exercise the s 473DC power does not become legally unreasonable by reference to what the delegate said during the interview, nor by reference to any “representations” she might be said to have made to the appellant during the interview process: cf Muin v Refugee Review Tribunal [2002] HCA 30; 68 ALD 257. The appellant, and more particularly his adviser, should have been well aware that the IAA might take a different view of the “PV statement” and other evidence, and put that material to different use. They should have been well aware that the IAA might give different weight to parts of the material, and might place emphasis on variations in the appellant’s narrative which were of no concern to the delegate. This is precisely the kind of difference that arises between two tiers of merits review, and is commonplace.
78. The issues concerning the death threats were the same before the Authority as they had been before the delegate. It was the Authority’s task to make its own assessment on the basis of the review material. The Authority was entitled to reach a different view on the material provided. Its different view was based on the same material as had been before the delegate. The appellant did not contend that there was an “informational gap” as there had been in APT17.
However, in the present matter, the delegate’s assessment of the applicant’s credibility and the representations that the delegate made in the course of the interview impacted the applicant’s presentation of his case. In particular, as can be seen from the summary and extracts of the interview above, the delegate did identify inconsistencies in the applicant’s evidence about the timing of various events and invited the applicant to comment on those inconsistencies. The applicant provided a response to the delegate’s concerns, expressing his confusion and explaining that he was under stress. It is significant in this matter that, not long after this, the applicant’s representative invited the delegate to find out from the applicant ‘how many threat letters he received, how many phone calls he received and perhaps that’s why he’s getting mixed up?’. That this offer was made suggests that the applicant may have been able to give further information to explain some of the inconsistencies in the timeline of his claims (or at least that the applicant’s representative thought he could do so).
The delegate declined to seek this further information from the applicant. The delegate then explained that the delegate accepted the applicant’s claim to have been shot and was not concerned about the inconsistencies in the timeline. This restricted the applicant’s opportunity to provide additional information at the protection visa interview which may (or may not) have addressed the Authority’s concerns.
I also find that there was an informational gap of the type described in ABT17. I do not accept the Minister’s submission that the delegate’s decision was not based on an assessment of the applicant’s demeanour. The absence of any reference to demeanour or the applicant’s appearance is not conclusive one way or the other of whether demeanour played a role in the delegate’s acceptance of the applicant’s claim that he had been shot at. However, a visual assessment of the applicant and his demeanour appears to have been highly relevant to the delegate’s assessment of the applicant’s explanations as to why there were inconsistencies in his timeline and the delegate drew no adverse inference against the applicant as a result of any inconsistencies in the sequence of events. The Authority, it will be recalled, treated the inconsistencies in the sequence of events as being one of only two reasons for rejecting the applicant’s claim in relation to the shooting incident, and was not persuaded by the applicant’s explanation that any learning disability or symptoms of PTSD or stress accounted for the inconsistencies in the sequence of events. The Authority also found that the applicant’s explanation that he was stressed and confused because of his father’s diagnosis with a terminal illness did not overcome its concerns about the credibility of the applicant’s claims.
In making their respective findings about the applicant’s explanations for the inconsistencies, the delegate was able to assess the applicant’s visual appearance and demeanour and the Authority did not have that information. It will be recalled that at one stage of the interview, the delegate was sufficiently concerned by the applicant’s apparent difficulties that the delegate was prepared to reschedule the interview to another day, on the basis that the applicant was agitated and unwell. This suggests that the delegate may have had some concerns about the applicant’s ability to effectively participate in the interview on the day of the interview.
While I acknowledge the Minister’s submission regarding the different basis of the pleadings in DPI17 and the present case, this submission has not affected the conclusion I have reached in this case. My findings are based on the particular facts and circumstances of this case, and not based on an analogy with DPI17, notwithstanding that there are some similar features.
Finally, I do not accept the Minister’s submission that the claimed shooting incident was not of central or dispositive importance in this matter. The reasons for this are similar to the reasons for finding that the Authority’s error considered in ground 1 was a jurisdictional error (rather than an error within jurisdiction). The shooting incident was one of the most significant aspects of the applicant’s claims to have faced past harm and part of the reason he claims he will face harm in the future from the militia on account of his past activities. While the Authority advanced other reasons for finding that he would not be at risk of future harm, the reasons referred to by the Minister cannot reasonably be separated from the Authority’s rejection of the shooting incident. Had the Authority accepted that the shooting incident occurred, it may have asked itself different questions as to why the applicant was not approached by the militia while living at his sister’s house and this in turn may have affected its views on whether the applicant would face a real chance of serious harm on account of his past activities in selling alcohol.
Ground 2 therefore is established.
CONCLUSION
Given that I have found that both of the applicant’s grounds establish jurisdictional error, the applicant’s judicial review application is successful and I issue writs of certiorari and mandamus.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 7 February 2024
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