BUZ20 v Minister for Immigration
[2020] FCCA 3398
•17 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUZ20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3398 |
| Catchwords: MIGRATION – PROTECTION – SHEV visa – extension of time – applicant unaccompanied minor claiming fear of harm from Sri Lankan authorities based on suspected familial political activism – Authority accepts that brother had been missing since 2006 but did not accept related claims that brother had been member of LTTE or that family members had suffered as a result – evolving nature of claims over a period of seven years – credibility based findings – whether inappropriate use of evidence given, and not given, at Entry interview – extension of time granted – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 473DB, 476A, 477 |
| Cases cited: AEH16 v Minister for Immigration & Border Protection [2019] FCCA 34 Capic v Ford Motor Company of Australia Limited (Adjournment)[2020] FCA 486 BCV16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 851 |
| Applicant: | BUZ20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1456 of 2020 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 17 November 2020 |
| Date of Last Submission: | 17 November 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 17 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr. P Botros *pro bono appointment |
| Counsel for the Respondents: | Mr. C. McDermott |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the Court via audio and video link.
Pursuant to s 477(2) of the Migration Act 1958 (Cth), the time within which the application for judicial review of the decision of the Immigration Assessment Authority made on 25 October 2019 be extended, now for then, to 5 May 2020.
The amended application dated 20 October 2020 be dismissed.
The applicant pay the costs of the first respondent as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1456 of 2020
| BUZ20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 20 October 2020, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 25 October 2019 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Safe Haven Enterprise (XE-790) visa (visa) pursuant to s 65 of the Migration Act 1958 (Act). By his amended application, the applicant sought an extension of time pursuant to s 477 of the Act within which to seek judicial review of that decision. I have concluded that it is in the interests of the administration of justice that the applicant be granted an extension of time within which to commence this proceeding.
A feature of the case was the applicant’s relative youth at the time of his arrival in Australia and the relevance of that circumstance to the Authority’s consideration to the evidence which he gave, and did not give, as the case requires, at an Entry interview conducted some seven weeks after his arrival as an unaccompanied minor at Christmas Island.
The application should be dismissed. In summary, I do not accept that the Authority had paid merely tokenistic reference to the appropriate limits to be placed upon the use of the Entry interview record or had grounded her conclusion respecting the credibility of the applicant’s claims solely upon what the applicant had omitted to disclose at the time of that interview. The Authority grounded its conclusion upon a variety of matters. Her reasoning and decision was not irrational or illogical.
Background
The applicant, a male Sri Lankan citizen of Tamil ethnicity aged 25 years first came to Australia on 18 October 2012 arriving on Christmas Island, then being 17 years of age.
On 8 December 2012, the applicant was interviewed at Christmas Island (Entry interview). The applicant was subsequently transferred to mainland Australia and received a series of invitations (and reminders) to apply for a Temporary Protection (Subclass 785) Visa or a XE-790 Safe Haven Enterprise Visa (SHEV).
It was only following a final reminder to apply for a visa issued on 30 March 2017 that the applicant lodged his application on 4 May 2017 (SHEV application) and which application was completed with the assistance of a migration agent. The applicant was 21 years and 9 months of age at the time of lodging the application.
On 3 November 2017, the applicant swore a statutory declaration containing further information relevant to his claim for protection.
Nearly two years later, on 5 September 2019, the applicant attended a SHEV visa interview, doing so without a migration agent.
I address below the matters raised during, or contained in, the applicant’s Entry interview, SHEV application, statutory declaration and SHEV interview respectively and as considered in the reasons of the Authority.
Delegate’s decision
On 11 September 2019, a delegate of the Minister made a decision to refuse the applicant’s visa application. The delegate found that the applicant was not a person in respect of whom Australia had protection obligations. Relevantly, the delegate found as follows:
a)the applicant did not claim to have had any involvement in the LTTE during the war, and it followed was not a high ranked official in the LTTE. Nor had he claimed any involvement in any activities that could be construed as supporting an ongoing Tamil separatist movement. The applicant was found to have a profile that would not be of interest to Sri Lankan authorities;
b)as concerned the applicant’s claim that he was of ongoing interest to the Sri Lankan authorities due to his family’s involvement in the LTTE, the delegate had serious credibility concerns regarding the late timing of the applicant’s claim that his brother was specifically involved in the transportation of weapons for the LTTE and that his mother’s four brothers were LTTE combatants. The applicant had not provided a reasonable explanation for why this level of detail had been omitted from his SHEV application;
c)when examining the applicant’s personal experience and profile, it appeared to the delegate that he had exaggerated aspects of his claims in relation to his profile with the Sri Lankan authorities and had done so in order to strengthen his overall claims. The applicant’s ongoing interest with the authorities after his departure from Sri Lanka was considered difficult to accept, particularly as he was not an LTTE member;
d)if the applicant’s claimed profile was to be accepted, it was unusual that his family had continued to reside and work in the same area (as too had the applicant) prior to his departure. While the applicant claimed to be the target of interest, the delegate was not satisfied that this would exclude or diminish the level of suspicion directed at his remaining closely related adult family members.
On 11 September 2019, the decision refusing the visa application was referred to the Authority for review. At the time of the review by the Authority, the applicant was self-represented.
Authority’s decision
On 25 October 2019, the Authority made a decision affirming the decision to refuse the visa application. In affirming the decision to refuse the visa, the Authority provided a statement of reasons for doing so (Reasons). On that date, the applicant was provided a copy of the Authority’s decision and Reasons and information about the 35-day timeframe in which to make an application for judicial review. The information so provided by the Authority included contact information for the Translating and Interpreting Service (TIS).
The Authority ultimately found that the applicant was not a person to whom Australia owed protection obligations, and affirmed the decision to refuse the visa application. It is convenient to consider the relevant aspects of those Reasons below.
Procedural history
On 5 May 2020, the applicant lodged an application for review of the Authority’s decision, doing so at a time when he was self-represented, in detention and after seeking, and eventually obtaining, some assistance from the Asylum Seekers Resource Centre. The applicant sought an application for an extension of time for the lodging of his application and supported that application by an affidavit to which he exhibited a copy of the Reasons and provided an explanation of why he had not filed his application within the 35-day time limit fixed by the Act.
On 12 May 2020, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application for an extension of time on the basis that the applicant did not adequately explain the delay in seeking judicial review and the Authority’s decision was not affected by jurisdictional error.
On 7 July 2020, a registrar of the Court made an order for the matter to be listed for final hearing. Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions. Those opportunities were not taken at that time.
On 21 September 2020, the Court determined that the applicant be referred for legal assistance under rule 12.02 of the Federal Circuit Court Rules 2001 (Cth), doing so by reason that the applicant was in detention and required the assistance of a Tamil interpreter.[1] Commendably, counsel for the applicant accepted a request to act pro bono in the matter and has represented him from that time. Submissions advanced on behalf of the applicant were of real assistance.
[1] Capic v Ford Motor Company of Australia Limited (Adjournment)[2020] FCA 486, [7] (Perram J).
On 20 October 2020, the applicant filed an amended application together with submissions by which the original grounds of review were abandoned and substituted with two further grounds of review.
The parties were agreed that if an extension of time was granted, the application should be determined at this hearing on a final basis.
Extension of time – applicable principles
By s 477(1), a 35-day time limit is fixed for the making of an application for judicial review of a migration decision. The Court may extend the time for filing an application: s 477(2). The power to extend time is subject to two conditions: (1) an application has been made in writing for such an extension, in which the applicant specifies why it is necessary in the interests of administration of justice for an extension to be granted; (2) the Court is satisfied that it is necessary in the interests of administration of justice to do so.
There are no mandatory considerations in determining whether it is in the interests of justice to make such an order and it is settled that the discretion to extend time for the commencement of proceedings is deliberately broad.[2] In the determination of whether an extension of time should be granted, the Court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent if the extension was granted, the merits of the substantive application and any other factor considered to be relevant.
[2] MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, [58].
While the discretion is broad, the Court should not grant an application for an extension of time unless it is proper to do so. If it is proper to conclude that a claim is bound to fail, the Court should not permit the application to proceed and accordingly decline to extend time.[3] That this is so brings to attention that legislative time limits are not to be ignored.
[3] Cf Agarv Hyde (2000) 201 CLR 552, [9] (Gleeson CJ) (setting aside foreign service).
Equally, the discretion conferred recognises that there will be cases in which, although no prejudice may be sustained by the Minister, the consequences for an applicant in losing a right of appeal are real. It was essentially common ground that, although an alternative route of review might be available, the refusal of an application for an extension of time foreclosed a right of appeal.[4]
[4] Act, par 476A(3)(a); see also MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, [65] (Mortimer J).
Resolution
While the Minister opposed the grant of an extension of time, for the reasons below, I am satisfied that it is necessary in the interests of the administration of justice to grant the application for an extension of time in which to apply for judicial review. That is essentially because, at the reasonably impressionistic level at which the applicant’s grounds of review are to be evaluated for the purposes of deciding whether an extension of time should be granted or refused, I am not satisfied that the proposed grounds of review are plainly hopeless. Adopting a prudent course in relation to whether the proposed grounds are plainly hopeless, it is appropriate to determine those grounds on a final basis.
Explanation for delay
The application is some 5 months out of time, which is not insignificant.
The applicant filed an affidavit which explained the circumstances in which he had failed to lodge his application within the 35-day time limit fixed by the Act. While the Minister submitted that the delay was inordinate, it is to be recalled that the applicant had arrived in Australia as an unaccompanied minor in 2012 after which he remained in detention for some 18 months during which period he had taken an opportunity to learn some English but had no family in Australia. The applicant’s affidavit recounted that in 2016 he had commenced a relationship and that at the time that the Authority delivered its decision in October 2019 his fiancée had ended their relationship. In substance, the applicant’s affidavit described that he had been distraught at the end of that relationship, isolated, without access to any family support in Australia and unwell to the point of being unable to attend work.
The applicant, who had no legal representation in October 2019, also deposed that in the face of a limited understanding of English he had not appreciated the strict time limits which applied to the making of his application and that it was only after being returned to detention in March 2020 that he appreciated the need to progress the matter which he was ultimately able to do with the assistance of the Asylum Seeker Resource Centre. I accept that the absence of legal representation is not of itself a sufficient basis for granting an extension of time.
It was submitted that once the applicant became aware of the applicable time limit, he had moved promptly to bring this application.
Responding to these matters, Mr McDermott of counsel for the Minister properly drew attention to the information for assistance from the TIS that had been provided to the applicant by the Authority when the decision had been made. For that reason it was submitted that the Court should not accept as adequate the applicant’s explanation of not realising that there was a strict time limit to lodge an appeal, particularly having regard to the information contained in the letter from the Authority, which the applicant could have had translated to him via the TIS.
The Minister also submitted that the applicant’s personal experiences of ‘isolation’ were little different to other visa applicants who had unsuccessfully sought to engage Australia’s protection obligations yet managed to make their applications within time.
While it was observed that there was no independent medical evidence supporting the applicant’s evidence that he was mentally unwell at the time he received that decision, it was not suggested that the applicant’s affidavit had been embellished or that there was any need to cross-examine him upon the evidence in that affidavit. In my view the submissions advanced on behalf of the Minister reflected the adoption of the stance of model litigant on these issues.
Prejudice
The Minister broadly accepted that he would suffer no prejudice, other than to observe that there was a general public interest in the finality of matters under the Act. Prejudice of that kind can be ameliorated in part by adhering to the practice of listing both the application for an extension of time and the final hearing at the same time.
Further, I accept that in an appropriate case, the absence of any prejudice to the Minister does not, of itself, mean that an order extending time should be made.[5]
[5]cf SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86, [6] (Flick, Griffiths & Perry JJ).
Merits of proposed grounds
Consideration of whether it is necessary in the interests of the administration of justice to grant the extension thus requires the evaluation of the merits of the proposed grounds of review.
As the authorities confirm, if an extension of time is to be granted, the Court must be satisfied that it is in the interests of justice to do so.[6]
[6] SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ); MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).
Whether an extension of time should be granted will depend upon the particular circumstances of each case.[7]
[7]Mentink v Minister for Home Affairs [2013] FCAFC 113, [32]-[38] (Edmunds, Griffiths, Pagone JJ).
In MZABP v Minister for Immigration and Border Protection (‘MZABP’),[8] the Full Court endorsed statements by Mortimer J in the decision under appeal, that the approach to be taken in a preliminary examination of the merits of the substantive application necessarily involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim. Mortimer J’s reasoning is instructive:[9]
. . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Jackamarra v Krakouer[10]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .
The Full Court plainly endorsed Mortimer J’s reasoning.
[8] (2015) 242 FCR 585.
[9] [2015] FCA 1391, [62]-[63].
[10](1998) 195 CLR 516, [7]-[9].
If the other requirements for an extension of time are satisfied and the merits of the proposed grounds of review are shown to be reasonably or sufficiently arguable, the time within which to lodge an application for judicial review should be extended. The determination of whether it is necessary in the interests of the administration of justice to grant an extension of time means that the merits of an application should be evaluated at a reasonably impressionistic level such that the Court is satisfied to a sufficient degree of confidence whether the grounds of review are arguable, reasonably arguable, sufficiently arguable or plainly hopeless. In the consideration of whether the grounds of an application are sufficiently arguable, the Court is not confined to a consideration of the proposed grounds of review but must also engage with the reasons of the decision-maker and consider whether the grounds are of any substance: see SZSZW v Minister for Immigration and Border Protection at first instance[11] and on appeal;[12] Kio v Minister for Home Affairs.[13]
[11] [2017] FCA 1544, [14]-[17] (Perry J) citing MZABP; DMI16 v Minister for Immigration and Border Protection [2017] FCA 1179, [33]-[36] (Robertson J).
[12] [2018] FCAFC 82, [26]-[27].
[13] [2019] FCA 579, [4], [10].
Thus, care must be taken to recognise and maintain the distinction between those cases which are hopeless and those which are merely weak and for which it would seldom be appropriate to grant an extension. However, at the impressionistic level that is to be adopted in the evaluation of the relative merits of a case, it is wrong to consider that the applicant seeking an extension must demonstrate their proposed ground will succeed. To the contrary, once it can be concluded that the case, though weak, is not hopeless, it would generally be improper to refuse the extension of time. And by extension, the stronger the apparent merits of a case, the greater will be the injustice of refusing an extension. For all of those reasons, the supervisory jurisdiction of this Court is more appropriately exercised by evaluating the merits of a proposed ground at that impressionistic level and, in all but hopeless cases, to proceed upon a full consideration of the matter as occurs at a final hearing.[14]
[14] MZABP, (2015) 242 FCR 585, [65]-[66].
In light of those principles, I accept the Minister’s submission that once the Court is satisfied that there is a reasonably arguable case, it will be prudent to grant the extension of time and proceed to determine the case based on more full arguments then put forward by the parties. Insofar as it was submitted that the extension of time should be granted in the course of the hearing, I accept the logic in the suggested approach. However, the difficulty which this presents is that the announcement of a decision to grant the extension at the end of the applicant’s submissions could thereby curtail the Minister’s opportunity to make submissions on the point. Conversely, to defer the decision until the end of oral submissions would do little more than to inform the parties of the result of the preliminary issue, leaving the Court to determine the matter at a final hearing on the basis of the submissions already made. Put another way, as the Court will often reserve its decision on a final hearing, the grant of the extension of time in the course of the hearing may only serve to interrupt the flow of argument and achieve little else.
The Minister contended that on an impressionistic assessment, this Court should not be satisfied that there is a reasonable prospect of success in relation to either ground. As I have concluded that the proposed grounds were not plainly hopeless, it follows I do not accept that submission. It is convenient to address the amended grounds as upon a final hearing.
Consideration
By his proposed amended application, the applicant abandoned the original grounds of review and substituted two further grounds, relying upon the same submissions in support of each ground.
Having regard to the way in which the parties’ submissions were framed, it is convenient to address the applicant’s claims and applicable legal principles before turning to the Reasons and parties’ submissions.
By way of overview, the parties were agreed that the two grounds of review represented alternative formulations of the same complaint. It was common ground that if the applicant succeeded in establishing Ground 1, the re-characterisation of the same matters as were relied upon as involving a constructive failure to perform its function of review would mean that Ground 2 was also made out. Conversely, it was also accepted that if Ground 1 was not made out then Ground 2 must also fail.
For that reason it is convenient to set out the grounds as a whole.
Ground 1 – adverse credibility finding
In substance, Ground 1 of the amended application contends that it had been irrational for the Authority to place weight on the omission of information from that which was provided during the Entry interview, notwithstanding the applicant’s age, inexperience in dealing with formal interviews, lack of assistance and nervousness at the time of interview.
Ground 1 of the amended application reads:
The Second Respondent’s fell into jurisdictional error by making a finding on the Applicant’s credibility, illogically or in a way affected by legal unreasonableness.
Particulars
a.Despite accepting that during the Entry Interview the Applicant (1) was a minor, (2) was not used to official interviews, (3) did not receive assistance from a migration agent, and, (4) was scared or nervous, the Second Respondent irrationally and illogically proceeded to place weight on the omission of information at that interview.
b.The Second Respondent’s finding as to the Applicant’s credibility was based, in part, on differences in his evidence about his brother over time. When properly analysed, any differences in the Applicant’s accounts either did not give rise to inconsistency, or only gave rise to inconsistency that was insufficiently significant to justify the Second Respondent’s conclusion.
c. The Second Respondent failed to consider the Applicant’s age at the time of his brother’s disappearance in 2006, but nonetheless relied on his account of events at that time in determining his credibility.
In the course of oral submissions, Particular (b) was not pressed. Ground 1 then turned upon the reasoning adopted by the Authority in relation to two matters: the weight attached to the omissions to refer to certain matters in the course of the Entry interview; and, the failure to consider the applicant’s age at the time of his brother’s disappearance in 2006.
Ground 2 – constructive failure to exercise jurisdiction
Ground 2 of the amended application reads:
The Second Respondent constructively failed to review the decision of the First Respondent by not considering whether the Applicant would face serious or significant harm based on an imputed political opinion.
In particularising this ground, the applicant repeated and relied upon the particulars advanced in support of Ground 1. For that reason, it was accepted that Ground 2 was a re-characterisation of the same substantive complaint as made in Ground 1. The approach taken by the applicant in this proceeding was consistent with that taken in MZZJO v Minister for Immigration and Border Protection (MZZJO).[15] There, the Full Court observed that, had the decision-maker relied solely upon an applicant’s failure to mention particular matters during an Entry interview, this may well have disclosed a misunderstanding of its proper task on review.
[15] [2014] FCAFC 80, [57].
Credibility findings
The making of a finding of fact which is a critical step in formulating the ultimate conclusion, and for which there is no evidential support, may constitute jurisdictional error.[16] By extension, a decision may be affected by jurisdictional error where it is irrational, illogical or not based on findings or inferences of fact supported by logical grounds.[17]
[16] SZMWQ v Minister for Immigration and citizenship [2010] FCAFC 97; (2010) 272 ALR 59, [125]; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402, [19].
[17] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
A number of principles relevant to adverse credibility findings may be summarised as follows:[18]
a)while findings as to credit are generally matters for an administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review;
b)the question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not to be assessed by reference to fixed categories or formulae. In each case, it is necessary to analyse what the decision-maker has decided;
c)without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis;
d)a decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the relevant decision was not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn;
e)jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims;
f)unwarranted assumptions by a decision-maker as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the decision-maker to disbelieve and disregard that evidence and may constitute a failure of duty to consider the question raised by the material put before it;
g)jurisdictional error may also be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”;
h)findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error. In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error.[19]
[18] See AEH16 & Anor v Minister for Immigration & Border Protection [2019] FCCA 34, [87]-[90].
[19] Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]); see also BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [34] (Perram, Perry and O’Callaghan JJ); Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Perram, Murphy and Lee JJ).
A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, it is said that “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. [20] Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”.[21]
[20] Minister for Immigration and Citizenship v SZRKT (2013) 302 ALR 572, [148] (Robertson J).
[21] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, [61] (McKerracher, Griffiths and Rangiah JJ).
Mortimer J recently observed the suggested requirement that illogicality or irrationality should be ‘extreme’ before error is made out is not supported by High Court decisions from which the principles are derived but nonetheless, that a high threshold is to be imposed.[22] Other authority adheres to the use of ‘extreme’ illogicality or irrationality as an apt description of the high threshold that is to be met in such cases.[23] To accept that the High Court’s decisions do not introduce a requirement that the illogicality or irrationality must be extreme before a conclusion of jurisdictional error is reached is not to deny the high threshold that applies or the nature of the caution that is appropriate to be adopted in scrutinising the logic of reasons of an administrative decision-maker without an eye which is keenly attuned to error. I prefer to approach the question without regard to the suggestion that an element of the test is that the illogicality or irrationality must be extreme and instead to adopt the settled caution that a high threshold is to be imposed.
[22] AWU16 v Minister for Immigration and Border Protection [2020] FCA 513, [23]-[28] (Mortimer J).
[23] BCV16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 851, [42] and cases cited (Murphy J).
Entry interviews
The applicant’s substantive complaint turns upon the Authority’s treatment of his Entry interview and in particular the weight which had been placed upon what had been omitted by him respecting particular aspects of his claims to protection in the course of that interview.
A number of aspects in relation to the use of evidence given or not given in the course of an Entry interview by an offshore maritime arrival require consideration. First is the recognised need for caution by a decision-maker respecting omissions of matters by a visa applicant at that time. Secondly, it should be recognised that where an interview has been conducted in close proximity to the date of arrival, the interviewee may have travelled a considerable distance and done so under trying conditions. By contrast, this consideration may be of lesser significance where the interview is conducted a reasonable time after arrival. Thirdly, a principal purpose of an Entry interview is to elicit information about so-called ‘people’ smugglers. A subsidiary aspect of the interview concerns an applicant’s claims to protection. Fourthly is the fact that the Entry interview constitutes the first substantive and formal engagement by the interviewee with Australian officials. Contextually, such offshore arrivals may have an entrenched mistrust and fear of officials having regard to the conditions under which they had lived before travelling to Australia. Fifthly, the interview process will be conducted through an interpreter and without the assistance of a lawyer or migration agent. Sixthly, the interviewee may be a minor who is unaccompanied by any family or adults and will be interviewed by a government official and in the presence of an unfamiliar third-party. Seventhly, the interviewee may well have no sufficient appreciation of the use to which answers might be put, an impediment which compounds the circumstance that he or she is being asked “to digest a lot of information quickly and in circumstances they may perceive as hostile”.[24]
[24] MZZJO, [2014] FCAFC 80, [56]-[57].
Having regard to these considerations, in MZZJO[25] the Full Court cautioned against reliance on omissions in Entry interviews, stating:
Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review.
[25] [2014] FCAFC 80, [57].
The reasoning in MZJJO is instructive. The Full Court agreed that the decision-maker’s adverse credibility findings were well open, having been based upon his answers to questions upon the relevant topic and upon inconsistencies which had been identified between the applicant’s various accounts and about his failure to mention certain matters in the course of the Entry interview. North, Bromberg and Mortimer JJ endorsed the cautionary approach to be taken in relation to the use of the Entry interview record having regard to the various factors identified above. Their Honours concluded that where a decision-maker had not relied solely upon an interviewee’s failure to mention matters in the course of an Entry interview but had also relied upon inconsistencies arising from later information presented by the visa applicant together with inconsistencies in answers given to the decision-maker, such an approach was open in the conduct of a merits review of a decision.
It follows that it is a misstatement principle to assert that the omission of matter in the course of an Entry interview is a factor that cannot be taken into account on a merits review. However, sole reliance upon such omissions would entail error by reason that it demonstrated a failure of the decision-maker to discharge its core function of review. Further, MZJJO confirms that it is a legitimate process of reasoning for a decision-maker to have regard to inconsistencies which had been identified between the applicant’s various accounts and a failure to mention certain matters in the course of his Entry interview.
In Minister for Home Affairs v AYJ17,[26] Moshinsky J held that the Authority’s decision was tainted by illogicality in the requisite sense by reason that it had rejected the applicant’s claim respecting his brother’s death on the basis that this had not been mentioned in an arrival interview. His Honour reasoned that the record contained the briefest of notes in relation to the applicant’s claims to protection and was capable, at a high level, of encompassing the brother’s death. Moshinsky J also had regard to the evident purpose of the arrival interview as being concerned with obtaining biodata and details of travel to Australia as distinct from a detailed description of an applicant’s claims for protection. It appeared that the structure of the particular record was such as to allow only for a truncated or incomplete statement of protection claims and in all the circumstances there was ample support for the conclusion that the Authority’s decision was tainted by illogicality and irrationality.[27]
[26] (2019) 165 ALD 64.
[27] See DWA17 v Minister for Immigration and Border Protection (2019) 272 FCR 152, [64].
However, there is nothing inherent in the statutory task on fast track review under Pt 7AA of the Act which prohibits the Authority from relying on the absence of a claim, or omission, in the record of an Entry interview: DWA17 v Minister for Immigration and Border Protection (DWA17).[28] There, the Full Court endorsed the good sense of applying caution in the use of Entry interviews and held that MZZJO merely identified the need for caution as “something which often, but not always, should be borne in mind. . .” Further, their Honours stated that the statements in MZZJO were obiter and did not “stand for the proposition that, regardless of the circumstances, relying solely or primarily on the absence of claims from an entry interview is a jurisdictional error” and affirmed that the dicta in MZZJO should be put to limited use.[29]
[28] (2019) 272 FCR 152, [38]-[39], [52] (The Court).
[29] (2019) 272 FCR 152, [33], [65]
In reaching that conclusion, the Full Court emphasised that jurisdictional error grounded upon illogicality or irrationality or a misunderstanding by a decision-maker of their statutory task was “notoriously dependent upon the facts of the particular case” and the particular statutory framework in issue. Later, the Full Court stated that:[30]
. . . nothing inherent in the statutory task prohibited the Authority from relying, even relying heavily, on the absence of a claim from the record of an initial interview in order to reject a particular claim. (Emphasis added)
[30] (2019) 272 FCR 152, [52]
A number of factors were identified as being relevant to the evaluation whether a decision-maker had misused omissions from statements made in the course of an Entry interview including that: (1) a decision-maker’s reasons were to be read as a whole and were not to be dissected so as to treat each aspect of its reasoning in isolation so that it could be more easily impugned; (2) it will be relevant that the decision-maker was aware that the purpose of the Entry interview was not for the assessment of an applicant’s protection claims; (3) it may be entirely appropriate for a decision-maker to regard a claim as implausible and to do so without any reliance upon statements made, or not made, at the Entry interview; (4) an applicant’s evidence on other issues may well be relevant to an overall finding on credibility; (5) the Entry interview record forms part of the ‘information’ that the Authority is required to consider pursuant to s 473DB of the Act; (6) while the lack of information provided at an Entry interview will not of itself strengthen the inferences that may be available to a decision-maker, such inferences may well be open independently of the absence of statements made at that interview; (7) the cautionary approach to be taken in the use of matter included in, or omitted from, the record of an Entry interview is precisely that: a caution; (8) the nature of the caution which is to be applied in the use of Entry interviews flows most directly against a decision-makers use for the rejection of a claim to a well-founded fear of persecution, where that is based solely upon the content of such records.[31]
[31] DWA17, (2019) 272 FCR 152, [33], [52] (McKerracher, Banks-Smith & Jackson JJ). See also EBC17 v Minister for Immigration & Border Protection [2018] FCA 1836, [22] (Farrell J); BIR17 v Minister for Immigration & Border Protection [2019] FCA 850, [45] (Charlesworth J);
In ASD17 v Minister for Immigration and Border Protection (ASD17),[32] Perram J, relying upon MZZJO and DWA17 held that there was nothing wrong in principle with the Authority using as part of its reasoning, an omission to mention a matter at an Entry interview. His Honour further held that where the reasoning suggested the Authority had proceeded upon an unstated assumption that an omission was relevant to its assessment of protection claims, the adoption of that assumption was reviewable on the ground of legal unreasonableness.
[32] [2020] FCA 1653, [33]-[34].
Underlying the analysis in DWA17 and ASD17 is an acceptance that the weight, if any, to be attributed to particular evidence is a matter falling within the exclusive provenance of the decision-maker. In turn the question of weight falls to be evaluated in the context that weight may be affected by several considerations, including “such matters as provenance . . . credibility, completeness, context or lack thereof, and the capacity of the interested party to respond to the material particularly if it is adverse”.[33] Applied in the context of an Entry interview, a failure to provide a complete or sufficient statement of a claim may be a factor that can legitimately be taken into account in deciding what weight, if any, is to be attributed to particular claims, including those made later.
[33] Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504, [105] (Perry J); DWA17 (2019) 272 FCR 152, [39]; ASD17 [2020] FCA 1653, [34].
While it was accepted that these principles informed the determination of the present application, counsel for the applicant emphasised the substantive basis for Ground 1 was based upon illogicality and not upon a failure to properly apply the principles considered above.
Submissions
As to particular (a) of Ground 1, the applicant submitted that the Authority had reasoned irrationally and illogically that omissions from statements made in the Entry interview ought to be given significance when assessing the applicant’s credibility. It was said, correctly, that there was no external evidence before the Authority which conflicted with the applicant’s account and that the Authority’s adverse credibility finding was reached only on the basis of perceived inconsistencies in his accounts. The applicant complained that in doing so, the Authority had focussed on omissions in the Entry Interview and given them significant weight in a manner that was properly categorised as being illogical.[34]
[34] Reliance was placed on the Reasons at [9], [13]-[17], [20].
It was further submitted that the circumstances as identified in MZZJO were all equally applicable to the applicant, including his fear and mistrust of authorities and that he was a minor at the time of the interview. The applicant properly accepted the principles as stated in MZZJO, but framed his challenge upon broader principles of illogicality. The applicant submitted that the Authority made ‘tokenistic’ reference to the appropriate limits on the use of the Entry Interview, but proceeded to justify why it had nonetheless relied on the omissions as being significant. It is convenient to consider the Reasons below.
The focus of the applicant’s submissions was upon the reasoning that the Authority regarded it as significant that the applicant had not mentioned at the Entry Interview in 2012 that he and his family faced any harm due to the disappearance of his brother – a claim which he would later make in the course of his SHEV interview in 2019.
It was further submitted that the justifications advanced by the Authority as to why the omissions ought to be given significance were illogical – in that the justifications bore no logical connection to the conclusion:
a)the applicant’s schooling, for instance, did not go to ameliorating any fear or distrust he may have of Australian authorities;
b)none of the purported justifications bore on his experience at the Entry Interview or his understanding of the relevance of the fullness of his responses;
c)nor did they make him more likely to readily disclose information to a foreign official.
Upon those bases, it was submitted that there was no rational or logical connection between the Authority’s stated justifications and its conclusion, the Authority has acted illogically.
As to particular (c) of Ground 1, the applicant further submitted that in assessing the applicant’s credibility, the Authority had placed importance on his differing accounts of what, he said, had happened to his brother.[35] As to this, the applicant submitted that the Authority failed to acknowledge that the applicant’s accounts were given seven years apart, and that the applicant did not purport to know precisely what happened to his brother.
[35] Reasons, [8], [20].
The applicant submitted that when assessing the credibility of his account by reference to his account of his brother’s disappearance, the Authority failed to take into account that the applicant was only 11 years old at the time of the disappearance (2006). The applicant submitted that a credibility based finding that relied on inconsistency of accounts could not rationally be made without consideration of the known personal factors that would affect the person’s recollection. In that respect the applicant complained that the Authority had failed to take into account the applicant’s age at the time of his brother’s disappearance.
The Minister submitted that the applicant’s challenges to the findings concerning the Entry Interview and the differing accounts as to the applicant’s brother’s disappearance, though framed as challenges to the legality of the credibility findings, were in truth no more than challenges to the merits of the factual findings. The Minister submitted that upon a proper reading of the Reasons, the fact the applicant had been of a young age at the time of his brother’s disappearance was implicitly recognised by the Authority and that the reasoning did not give rise to any illogicality or irrationality in the requisite sense.
Claims to protection
The manner in which the applicant’s claims to protection were made should be traced through the statements made in the course of his Entry interview in 2012, his SHEV application and statutory declaration, each made in 2017, together with his SHEV interview in 2019. It is useful to do so in light of the applicant’s grounds of review and in order to evaluate the Authority’s reasoning.
The applicant’s Entry Interview was conducted on 8 December 2012, some seven weeks after his arrival in Australia on 18 October 2012. As noted, the applicant was then 17 years of age.
The Entry Interview record was arranged in three parts as follows:
a)in Part A, it was noted that the Interview was of about one hour’s duration and that the Interview took place with the applicant (who agreed to the Interview being recorded), in the presence of a ‘responsible adult’ and in circumstances where he had arrived in Australia as an unaccompanied minor;
b)in Part B, an array of biographical details were provided, including that: from 1995 until September 2012, the applicant had lived in Allarai, in the Northern District of Jaffna; in 2011, the Allarai government had issued the applicant with a national ID card; from 2010 to September 2012, the applicant had worked for his father on their farm. In particular, the applicant stated that he had completed his schooling in Allarai, achieving his O Levels;
c)in Part C, which addressed his reasons to leave Sri Lanka and related matters, the applicant stated that: he had left Sri Lanka because “My brother was missing, my mother was worried about me, so she sent me here”; and, police or security or intelligence organisations had had an impact upon his day-to-day life. Further, more extensive detail was provided in relation to issues addressing the identity of the people smugglers who had been paid (by his father), to transport the applicant to Christmas Island.
As noted by Moshinsky J in AJY17, so here, comparatively little space was available to flesh out the nature of the applicant’s claims to protection (with the majority of Part C being dedicated to matters relating to his travel arrangements to Australia).
By his SHEV application dated 27 April 2017, the applicant again stated that from 1995 until 2011 he had lived in Allarai in the Northern District of Jaffna and that from 2010 to 2012, he had worked Allarai in “Agriculture, Forest & Fish.” The applicant repeated his claim to having completed high school in Allaria. In answer to questions as to the reason why he had left Sri Lanka and what he thought would happen if he returned to his country, he stated:
I left my country because of the Civil War in Sri Lanka, especially in my home town, Jaffna, in my life was threatened. Many civilians (males) were secretly taken away. My brother was arrested and taken away. He has never returned home. My parents were so scared that I would be the next one to be taken away.
I have been told that the local authorities had been looking for me. They threatened to arrest and jail me if I return home.
In answer to a question whether he had tried to move to another part of Sri Lanka so as to seek safety, the applicant replied that he did not know where to go. In response to a question whether he believed he would be harmed or mistreated if returned to Sri Lanka, the applicant reiterated that if returned to his home town he would be arrested and jailed. He gave as reasons why the authorities could not or would not protect him that this was “because they are the ones who threatened me and my family. My brother was arrested and taken away.” As concerned the issue of possible relocation he stated as a reason why he would be unable to do so “No. My family was suspected of being against the authorities.”
In his Statutory Declaration made on 3 November 2017, the applicant deposed that the reason he had come to Australia was because of the war in Sri Lanka and the problems which he faced in his country. He referred to an incident which happened when his second brother had attended a puberty ceremony of a cousin in a different district, stating that a few days after his brother had left home the war had begun and so his brother could not return home. He deposed that all efforts were made to look for his brother but that they had failed to locate him. The applicant further stated that the army then started to investigate his family members, suspecting his brother was on the side of the Liberation Tigers of Tamil Eelam’s (LTTE) that was against the army. He further stated that “Every one of the family was tortured including me as a young boy.”
The applicant further declared that he was questioned about his brother’s whereabouts and that he told the army he did not know of his brother’s location and that all he knew was that his brother went missing. The applicant stated that he was beaten and threatened with harm if he could not show them where his brother was hiding. The applicant declared that his father was so scared of the army and worried that they would take the applicant away as they had done with so many other young men in his village. He stated “That had been the reasons as to why my father had organised for me to get away from my country. He told me he had lost my brother and he did not want to lose another son. I understand the Civil War in my country has not been over. The fights between the factions are still happening. The army is still looking for me. They threaten I they know whereabouts of me they will arrest me and jail. No doubt if I return home I will be harmed.”
In the way in which the applicant’s oral submissions were presented, his statutory declaration was aptly described as representing the first occasion on which the applicant had presented the totality of his claims for protection. It was common ground that the statutory declaration had been supplied voluntarily and not, for example, in response to a request for the provision of further information.
Further, the applicant participated in a SHEV interview in 2019 which is addressed below in the context of the Authority’s Reasons.
Resolution
The approach to be taken in the determination of an irrationality or illogicality based ground is to ask whether it was open to the Authority to engage in the process of reasoning in which it did engage and in making the findings which it did make on the material before it.[36]
[36] Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309, [61].
As to entry interview
The applicant’s substantive challenge turns on the Authority’s finding as to the significance of the omission of certain information given by the applicant in his Entry interview and the Authority’s adverse assessment as to the different accounts the applicant is said to have given as to the disappearance of his brother.
The Authority considered the refugee assessment at [4]-[36]. Counsel for the applicant disclaimed any criticism of the manner in which the Authority had provided a summary of the matters as discussed or contained respectively in relation to: the Entry interview: [6]-[9]; the visa application: [10]; the statutory declaration: [11]; and, SHEV interview: [12]-[15].
By way of overview, the Authority observed that while the applicant had been assisted by a migration agent when preparing his visa application and statutory declaration, it recognised that he had not been assisted by such an agent at either the Entry or SHEV interviews. While the Authority might have been criticised had it not acknowledged that the applicant had not been assisted by such an agent at either the Entry or SHEV interviews, it quite properly did so. The Authority accepted the applicant to be a citizen of Sri Lanka from the Jaffna district of the Northern Province and to be of Tamil ethnicity: [6]-[7].
The Authority addressed the claim that the applicant’s brother had gone missing during the conflict in 2006: [8], [16], [20], [22]. It recorded the applicant’s claims that the authorities suspected his brother to have joined the LTTE, and that the applicant had “later claimed” that his brother had joined the LTTE and, for this reason, that he and his family members had faced constant problems from Sri Lankan authorities, in particular army officers from the camp adjoining his family home; those problems included being repeatedly detained, interrogated and beaten: [8]. In the context of the grounds of review, it appears that the matters at [8] of the Reasons had been obtained from a variety of sources and had not derived solely from the Entry interview or omissions observed to have occurred in contrast with evidence given at later times.
The Authority member also summarised at [8] her view that she considered the applicant’s claims as to his brother and the problems which he and his family, had faced had “ballooned considerably since his arrival in 2012” and, for the reasons which followed, did not consider that “the applicant’s key claims for protection are credible”: [8].
The Authority contrasted the evidence derived from the applicant’s Entry interview conducted in December 2012, his visa application lodged in April 2017, his statutory declaration made in November 2017 and his SHEV interview held in September 2019: [9]-[15].
As to the Entry interview, the Authority noted that the applicant had been asked to provide reasons why he left Sri Lanka and that he had stated his brother was missing and his parents had sent him to Australia as his mother was worried about him. The Authority noted that the applicant denied that he or any family members had any political association. As concerned the question of the impact of security forces on his life, the Authority recorded that the applicant stated his brother, who was missing, had a lot of problems in his life and that the CID were “after his brother” and that people had dobbed him into the CID: [9].
As to the visa application, the Authority noted the applicant stated he had left Sri Lanka because of the Civil War and that his life was threatened. It noted his statement that many male civilians had been secretly taken away and that “His brother was arrested and taken away and never returned home. His parents were so scared that he would be the next one to be taken away”: [10].
As to the statutory declaration, the Authority referred to his statement that his brother had attended a puberty function for a cousin in a different district and had been unable to return home due to road closure and at this time “The army started to investigate his family members as the army suspected that his brother was on the LTTE’s side. Each one of his family members was tortured”: [11].
As concerned the SHEV interview, the Authority noted the following
a)the applicant had stated that his brother had had an altercation with a neighbour before attending the function for his niece which resulted in the neighbour reporting the brother to the LTTE who had attended the function and taken his ID card which thereby prevented him from returning home and which difficulty was compounded by the road closure described earlier: [12];
b)the applicant further stated that his grandmother had told his mother in 2010 that his brother had joined the LTTE and was transporting weapons and further that, after the war, his family had searched all of the camps and notified Red Cross but been unable to locate his brother: [12], [20];
c)the applicant stated that in around 2009, when the war was becoming intense, he had travelled some 20 km from his home and stayed with a distant relative, also in Jaffna: [13];
d)the applicant also claimed that before coming to Australia he had stayed in Colombo for about one year: [13];
e)the Authority noted that these details had not been mentioned in the Entry interview, the visa application or the statutory declaration and that when these matters had been put to the applicant he had not mentioned having lived in those other locations, either:
i)during the Entry interview: he replied that he had not been used to formal interviews and did not know what to say because he had been scared: [13];
ii)in his visa application, statutory declaration or during the SHEV interview respectively: the applicant stated that he had forgotten a lot of things that had happened: [13];
f)when the applicant was asked if he had been questioned in Colombo, he replied that he had not been as he had not registered. When pressed as to how he had managed to stay in Colombo unregistered for one year, the applicant replied that “he did not have any problem and lots of people lived like that without being registered”: [14].
The Authority proceeded to examine what was described as a new claim that had been raised at the SHEV interview that his mother’s siblings were involved in the LTTE: [15]. The Authority stated as follows:
When the delegate put to him that he did not disclose his brother’s LTTE role or his mother’s siblings’ LTTE involvement in his Entry interview or SHEV application, he said that he was warned about being truthful about involvement in the LTTE so ‘he did not want to tell the truth at that time’. When the delegate asked again ‘even in your SHEV application?’, he responded that ‘I only said that my brother had disappeared’. (Emphasis added)
From the matters stated in the Reasons at [15] above, it appears the applicant accepted that he had only disclosed his brother’s disappearance and, in effect, accepted that he had not referred in his SHEV application to the claimed LTTE involvement of either his brother or of his mother’s siblings. The Reasons do not explore why the applicant decided (despite being warned about being truthful about LTTE involvement) that he had not wanted to tell the truth at that time. It was on the basis of the reasoning at [9]-[15] as described above, that the Authority member concluded she had significant credibility concerns as to the applicant’s claims as to the involvement of his brother in the LTTE and any other relatives in the LTTE or of the problems which he claimed his family had encountered: [16].
The central focus of Ground 1 was upon the reasoning at [17] and where, as it was said, the Authority had made tokenistic reference to the appropriate limits to be placed upon the use of the Entry interview, but had then proceeded to justify why it had nonetheless relied on certain omissions in the applicant’s statements as being ‘significant’:
I accept that the applicant came to Australia young at the age of 17 years old. I have taken into account that he was not used to official interviews and might have been scared or nervous. I also take into account that the entry interview is not intended to substitute for a protection visa application or interview and that he did not receive assistance from a migration agent then. On the other hand, I note that applicant was able to give considerable details about other matters, such as his family composition, his schooling and his trip to Australia. He even mentioned that the UNHCR provided books to his school. The applicant has 11 years of education. The entry interview took place one and a half months after he arrived in Australia. He also attended the entry interview under the company of a responsible adult . . . Even accepting that he might be scared to mention his brother or relatives’ LTTE involvement, I consider it significant that the applicant did not mention that he and his family faced any harm due to his brother’s disappearance as he later claimed. . . . (Emphasis added)
In the context of the grounds of review, the key issue which the Authority identified as having not been mentioned in the course of the Entry interview was that the applicant and his family had faced any harm due to his brother’s disappearance in 2006. Read fairly, I consider that the statement respecting a ‘later’ claim is a reference to the claim that he and his family had faced harm as a result of his brother’s disappearance.
Despite the applicant’s characterisation of the Authority’s recognition of the applicant’s young age, his lack of familiarity with formal interviews, his fright and nervousness as ‘tokenistic’, each of those matters were recognised. Objectively, those facts were self-evident. The Authority was conscious that at the time of the Entry interview, the applicant was aged seventeen and an unaccompanied minor. The latter fact was reinforced by the fact that the interview record disclosed the presence of an adult who had been present with the applicant during that interview.
The Reasons at [17] expressly recognised the caution appropriate to be adopted in relation to the use of Entry interviews and that they were not a substitute for either the content of the protection visa application or the SHEV interview. Further, it was recognised that the applicant had not been represented at that time. While the characterisation as ‘tokenistic’ might be understood as indicating the foundation for a submission that mere recitation of an applicable principle will not immunise a decision from scrutiny where it is apparent that there has been a failure to discharge the core function of review, it is to the whole of the Reasons, read fairly, that regard must be had on judicial review. Further, while some attention was paid in the course of submissions to the use of the expression ‘ballooning’ in the Reasons at [8], in my view, the expression was employed in an adjectival sense to describe the manner in which the applicant’s claims and evidence had evolved from 2012 until 2019 and as disclosed by the reasoning that followed.
Insofar as the applicant criticised the Authority’s reference to schooling in the Reasons at [17] as bearing no logical connection to the applicant’s distrust of authority, I do not accept that this is a fair reflection of what the Authority was concerned to describe at that point. The Reasons at [17], relevantly, identified a number of aspects of the Entry interview where the applicant’s evidence had been far more detailed, including in relation to his schooling, and this was used in contradistinction to the lack of any reference to the claim of harm faced by the applicant or his family as a result of his brother’s disappearance. Later the Authority returned to the issue of schooling in its assessment of the reality of the applicant having faced harm by remaining in his home, in circumstances where he had continued his schooling to his O Levels: [19], [22], [24].
The Authority addressed the applicant’s visa application and statutory declaration, each of which had been prepared with the assistance of his migration agent. Again, the Authority member stated that she considered it “not insignificant that the applicant did not mention at that time that his brother or his mother’s siblings had actual involvement in the LTTE.” The Authority noted that by 2017 the applicant had been in, and working in, Australia for several years: [18].
Further, the Authority noted the applicant had stated both in his Entry interview and visa application that he had lived in Jaffna in one place from birth until he left Sri Lanka and that he had also worked there. The Authority considered the applicant had not provided a credible explanation at the SHEV interview in relation to his failure to mention in his visa application his claims to having left his home to live in another distant part of Jaffna for 12 months and later in Colombo for 12 months before leaving Sri Lanka for Australia: [18].
Similarly, the Authority noted that the applicant, in both his Entry interview and visa application stated that he had attended school in Jaffna from 2000 to 2011 but that in his SHEV interview he had stated he could not continue his studies because of the problems he had faced. Further, the Authority referred to the applicant’s national ID card issued in October 2011 which identified him as being a student in Jaffna, a matter also referred to in the course of the Entry interview. The Authority considered those matters undermined the applicant’s claim to have lived and worked in Colombo for about one year before he began his trip for Australia in May 2012: [19].
The Authority re-examined the differing evidence as to the disappearance of the applicant’s brother and the problems which his family was said to have experienced thereafter: [20]-[21]. It recorded the applicant’s evidence that in 2010 his mother had been told by his grandmother that his brother had joined the LTTE.
The Authority recorded that it was during the SHEV interview that the applicant gave an account of when his family had started having problems after his brother had gone missing in 2006. His evidence was that those problems had started in 2007 and he recounted that his family home was adjacent to two army camps and that army personnel had come to his house, checked on the whereabouts of his family members and that at monthly intervals, when their home was visited by a more highly ranked officer, the family would be taken for questioning: [21].
During the SHEV interview, the applicant then added that he could not return because he would be treated like a slave by the Sinhalese peoples. Asked to clarify this evidence, the applicant described being told by army personnel to run errands (such as purchasing cigarettes).
In its consideration of whether the applicant held a well-founded fear of persecution, the Authority was perplexed as to why his family could not have simply moved houses whether to the same village or a different town so as to avoid living immediately adjacent to the army camps. The applicant’s evidence was that his family owned two adjoining properties in that location where they pursued the cultivation of land and fishing: [21].
The Authority accepted that the applicant’s brother had gone missing in 2006 but was not satisfied that he had been taken away by authorities or that his brother had an actual, or suspected, LTTE involvement. Nor was it satisfied that the applicant’s family had been imputed with having LTTE links or that they had been harmed due to the disappearance or otherwise. In support of those conclusions, the Authority noted that the applicant had continued his schooling to complete his O Levels and that his family had continued to live at their farm (adjoining the army camps) from the time of his brother’s disappearance in 2006 until he had left Sri Lanka in 2011 and that the family continued to live at that location: [22].
It found that neither the applicant nor his family had been of interest to authorities from 2006 or afterwards and did not accept that the applicant had an adverse profile as would be likely to expose him to a risk of harm.
The Authority had regard to country information in relation to the treatment of Tamils which supported conclusions that the fact of being a young Tamil no longer gave rise to suspicion of having LTTE links and that former LTTE members faced no legal barriers to participation in public life (including in politics): [23]-[24].
The Authority was not satisfied that the applicant faced a real chance of harm on the basis of his claims and in light of that information: [25].
While the Authority accepted that the Applicant’s brother was missing from about 2006, it held ‘significant credibility concerns as to his claims as to his brother and other relatives’ LTTE involvement and the problems he and his family encountered’: [16]. The concerns identified were that:
a)the applicant had omitted key details concerning his claims, specifically that he and his family had faced harm due to his brother’s disappearance: [17];
b)the applicant had omitted details from the visa application and the statutory declaration, in particular, the LTTE involvement of his brother and mother’s siblings. In this respect, the Authority noted that the applicant was represented by a migration agent at the time both those documents were written and his context within Australia, and that the explanation he gave during the interview for failing to identify these claims was not credible: [18];
c)the date of issue of the applicant’s national identification card in October 2011 undermined his claims to have been in Colombo a year prior to his departure to Australia in May 2012: [19];
d)the applicant had provided differing evidence as to what happened to his brother between the time of his entry interview and his interview with the delegate: [20];
e)the applicant’s explanation as to why his family remained at their family home despite ‘the serious nature and the frequency of the harassment and physical harm he claimed he and his family to have experienced’ was not credible: [21].
The remainder of the Reasons was not relied upon in the application.
In light of those matters, I do not accept that the acknowledgement in the Reasons of the caution to be adopted in respect of Entry interviews was merely tokenistic or that its rejection of the credibility of the applicant’s claims was based solely upon that interview. Clearly it was not. The Authority was entitled to accept or reject or give such weight to the applicant’s evidence as it considered appropriate.[37] Irrespective of the description of the claims or evidence as ‘ballooning’, the Reasons identified in a cogent way how the claims and evidence had evolved.
[37] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464, [27]; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [11].
For the reasons above and upon a fair reading of the Authority’s reasons as a whole, nor do I accept that it was not open to it to engage in the process of reasoning in which it did engage and to make the findings it made on the material before it. The Authority’s conclusion that it was not satisfied that the applicant had a well-founded fear of harm arising from any harm said to have befallen the applicant or his family following the disappearance of his brother in 2006 was not illogical or irrational in the sense necessary to establish jurisdictional error.
Applicant’s age at time of account
I accept that the Authority attached some importance to the applicant’s differing accounts of what was claimed to have happened to his brother, but I do not agree that its reasoning was illogical or irrational.
The Authority referred to the applicant’s age at the time of his Entry interview and the key dates across the process of his visa application. In my view, nothing in the Reasons entailed any attempt to impugn an eleven year old’s recollection of events which had occurred in 2006. To the contrary, the point of the Authority’s analysis was to demonstrate the way in which matters had been introduced to the applicant’s narrative. The Authority reasoned that the absence of matters had not been mentioned until later in the process of the protection visa application was considered to be of some significance. There was force in the Minister’s submission that the applicant’s challenge to the reasoning respecting the applicant’s evidence as to his brother’s disappearance having regard to his age at that time and later, when he gave evidence in the course of his visa application was in substance an impermissible attempt at a merits review in this Court.
For the reasons above, Ground 1 is rejected. Having regard to the way in which the grounds were framed, it follows that Ground 2 is also rejected.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 17 December 2020
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