BVL17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 126
•16 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BVL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 126
File number: PEG 205 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 16 February 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority misconstrued or misapplied s 473DD(b)(ii) of the Migration Act – whether the Authority made a decision in relation to s 473DD that was illogical or irrational – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 473CA, 473DD, 476 Cases cited: ABH18 v Minister for Home Affairs [2020] FCA 620
ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90
CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15
DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 559
EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657
FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; [2008] FCAFC 91
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of last submission: 22 September 2023 Date of hearing: 22 August 2023 Place: Perth Counsel for the Applicant: Mr M Crowley Solicitor for the Applicant: AUM Legal Counsel for the First Respondent: Mr T Lettenmaier Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 205 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BVL17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
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 Sri Lankan Tamil who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision. The applicant seeks judicial review of the Authority’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The application before the Court raises a single ground asserting that:
(a)the Authority misapplied or misconstrued s 473DD of the Migration Act because the Authority required itself to be persuaded that new information provided by the applicant be true, rather than credible, contrary to the requirements of section 473DD(b)(ii); or
(b)alternatively, if the Authority’s reasons properly construed show that the new information was incapable of belief, that finding was affected by illogicality or lack of an intelligible justification because the Authority could only have found that the new information was incapable of belief if it accepted that the inconsistent conflicting information was incapable of doubt.
For the reasons explained below, I have found that the applicant has not established that the Authority decision is affected by jurisdictional error and the application to this Court is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant entered Australia by sea in September 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
The applicant attended an entry interview with an officer of the Minister’s Department on 22 January 2013. The written record of that interview reflects that the applicant said that he was required to work for the Liberation Tigers of Tamil Eelam (LTTE) for six or seven months in 2009, and he took care of injured people and helped set up bunkers.[1]
[1] In referring in this judgment to claims made or evidence given by the applicant, I only refer to those which are relevant to the ground raised in the judicial review application.
On 19 December 2015 the applicant lodged a protection visa application. The applicant provided a statement with his protection visa application, in which he indicated that he relied on an earlier statutory declaration made on 20 December 2013, as well as the additional information in the statement. In the statutory declaration of 20 December 2013, the applicant claimed that at various times during the war, he was forcibly taken by the LTTE. He claimed that he was not trained in weapons and did not fight with the LTTE, but that he was taught how to make bunkers and made to carry wounded soldiers.
The applicant attended an interview with an officer of the Minister’s Department on 25 July 2016 to discuss his claims for protection.
A delegate of the Minister refused to grant the applicant a protection visa on 29 September 2016. The matter was then referred to the Authority for review under s 473CA of the Migration Act.
The applicant, via his representative, provided a statement containing new information and a submission to the Authority on 27 October 2016. In his statement, the applicant said that he was forced to do arms training with the LTTE six days a week for three months in 2008. He continued:
Having done this training, I was forced to undertake a more active role with the LTTE than that which I have described previously. The role I fulfilled was as a sentry on the front lines, as well as helping to move the injured fighters from the front line. The prominence of my role on the front line meant that I was well known by many of the key fighters and leaders within the LTTE.
On 31 March 2017 the Authority purported to affirm the delegate’s decision not to grant the applicant a protection visa. This decision was quashed by consent by an Order made by the Federal Court on 27 June 2022. The Consent Order indicates that the Minister conceded the Authority’s decision was affected by jurisdictional error because the Authority did not consider whether the new information provided by the applicant on 27 October 2016 met the criteria in s 473DD(b)(ii) of the Migration Act before finding that there were not exceptional circumstances to justify considering it (see AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17)).
After the matter was remitted to the Authority for reconsideration, on 16 August 2022 and 22 August 2022 the applicant’s representative provided a further submission to the Authority, together with some country information.
On 5 October 2022 the Authority affirmed the delegate’s decision. The applicant filed an application seeking judicial review of this decision on 31 October 2022. Given that the ground of application advanced by the applicant relates only to the Authority’s consideration of s 473DD of the Migration Act, it is unnecessary to summarise the whole of the decision. Those parts of the Authority decision which are relevant to the application before the Court are set out in the consideration of the applicant’s ground of review.
JUDICIAL REVIEW APPLICATION
By an amended application filed on 22 December 2022, the applicant raises the following ground:
1A.The decision of the Immigration Assessment Authority was vitiated by a constructive failure to exercise jurisdiction consequent upon a misconstruction or misapplication of s 473DD of the Migration Act 1958 (Cth), or by a lack of intelligible justification or illogicality.
Particulars
1A.1The Authority at [21] required itself to be persuaded not that the ’new information’ be ‘credible’ but that it be ‘true’, contrary to the statutory command at paragraph 473DD(b)(ii) of the Act.
1A.2Alternatively, if the Authority at [21] found that the ’new information’ was incapable of belief, that could only follow (in the premises) if the Authority accepted as incapable of doubt the previously-made claims, whereas those claims were rejected at thee substantive stage of review.
The evidence before the Court comprises the court book filed on behalf of the Minister on 24 November 2022.
CONSIDERATION OF THE GROUND OF APPLICATION
The applicant’s ground gives rise to two separate questions, both relating to the Authority’s consideration of whether new information provided by the applicant met the requirements of s 473DD(b)(ii) of the Migration Act. The first is whether, in considering whether the new information was ‘credible’, the Authority proceeded on the basis that the information must be ‘true’ rather than ‘capable of being believed’ for the requirements of the subsection to be met. The second, alternative, question is whether the Authority’s finding that the new information was not credible was illogical or irrational.
The requirements of s 473DD of the Migration Act
In conducting a review under Part 7AA of the Migration Act, the Authority may only have regard to new information that was not before the Minister’s delegate if the requirements of s 473DD of the Migration Act are met.
Section 473DD of the Migration Act provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
In considering whether information is credible personal information for the purposes of s 473DD(b)(ii), the Authority is required to consider whether the new information is ‘capable of being believed’ rather than whether it is ‘true’. This was explained in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16), where the Federal Court (Bromberg J) said at [41]-[42]:
41.In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
42.The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 (BTW17), the Full Court (Mortimer and Jackson JJ) confirmed that the approach of Bromberg J is the correct approach. In reaching this view, their Honours reflected on the extent to which it is permissible to have regard to the review materials in determining whether new information is capable of being believed and said at [72] and [73]:
72.Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant — in all these circumstances the Authority is entitled to reflect on and assess the review material already before it — but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions — in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
73.However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own — fresh — consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
In DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15 (DPT17), Colvin J considered CSR16 and BTW17 and explained at [31]:
Logically, the matters that will bear upon whether information is capable of being believed will also bear upon whether it is actually to be accepted as truthful for the purposes of the exercise of a decision-making power. The distinction lies in how far the consideration of the information is taken for the purposes of s 473DD(b)(ii).
Before turning to the particular findings of the Authority in the present case, I briefly address some of the cases referred to by the parties in their submissions, which provide examples of the application of the principles in CSR16 and BTW17:
(a)In CSR16, Bromberg J found that the Authority, in reasoning that it was ‘not satisfied that the applicant does have a genuine fear of this kind [as described in the new information] and [was] therefore not satisfied that it is credible personal information’, imposed a higher standard of satisfaction than s 473DD(b)(ii) required. His Honour found that the Authority required satisfaction that the new information was true, whereas all s 473DD(b)(ii) required was that it was capable of being believed: see [35], [43].
(b)In BTW17, the Full Court (Mortimer and Jackson JJ, Besanko J agreeing), found that the following reasons of the Tribunal were properly understood as amounting to a finding that the relevant new information was ‘evidently not credible’ or not capable of being believed (see [24], [83]-[84]):
In respect of the 2015 newspaper article, there is a mention of the arrest of “R” (the applicant’s nickname) for the shooting of “SN”. I accept if true this is personal information. However, that the applicant only provided this document so late in the proceedings leads me to doubt the genuineness of the document. As discussed above, I find it difficult to believe that he would not have such a document in possession earlier given his claims it mentioned him and given it was dated January 2015. Secondly, the article mentioned that R gave the weapon to AJ and it was found in a cupboard. However, this inconsistent with other evidence provided by the applicant, such as the magistrates court document, about who the gun was given to and that it was found under the bed. Further, the applicant statement noted that AJ was shot in 2011, which was inconsistent with the article’s account that AJ was released on bail in 2012 and developed a friendship with SD again at the end of 2013. Further, given the long rambling nature of the account it is odd there is no further mention of what happened to R, the claimed bail or that he fled the country. Thirdly, the country information … indicates the prevalence of fraudulent documents which further reinforces my view that the document is not credible.
(c)In DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 559, Judge Riley considered a decision in which, in finding that new information about the applicant’s health was not credible, the Authority reasoned (see [7]):
The applicant has not provided any details of when his mental health issues arose or deteriorated, nor has he provided any reports from health providers detailing his condition or treatment plan. The applicant also has not referred to any independent information supporting his claims that he will not be able to access the required treatment if returned to Sri Lanka. If the new information relates to recent health issues and could not have been provided to the delegate, given the limited details about the applicant’s claimed mental health condition and lack of any medical reports outlining his diagnoses, medication, current or future treatment requirements, I am not satisfied that the applicant’s assertions without any supporting evidence is credible information.
Judge Riley rejected the applicant’s submission, based on CSR16 and BTW17, that the Authority had set too high a threshold in considering whether the information was credible, and found that it was open to the Authority to reason that the applicant’s claims regarding his poor mental health were not capable of being believed because they were bare assertions from the applicant and not supported by independent expert evidence: see [37]-[39].[2]
(d)In ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847, Wigney J considered the following explanation of the Authority for not having regard to new information (see [26]):
I take into account the interview before the delegate where the applicant was told clearly that all relevant information had to be provided. The applicant was given assurances as to confidentiality and told that failure to provide complete information could have consequences for his claims. The delegate gave the applicant a number of opportunities to put forward any new claims or additional information throughout the interview and at the end of the interview, invited the applicant and his agent to submit any further information before the decision was made. The applicant did not provide any further information or make any new claims. Having regard to the comprehensive assurances given at the interview, together with the fact that the applicant was assisted by a migration agent at that stage, I do not accept the applicant’s statement that he was too scared to disclose what would otherwise be a fundamental part of his claim for refugee status. Even if I was to accept that this information was credible, I am not satisfied that there are exceptional circumstances to justify considering this new information and I have not considered it.
His Honour described this reasoning as the Authority not being satisfied that ‘the statement about helping detainees was credible because it was a new claim that the appellant could have, but did not, advance at any time prior to the delegate’s decision, despite having been given numerous opportunities to do so’. His Honour also described the Authority’s finding as being, in effect, that the new information was ‘a recent invention and therefore not credible’. His Honour did not find jurisdictional error in the reasons: see [62]-[64]. However, I note that the ground his Honour was considering in that case was whether the Authority had considered s 473DD in the manner that the High Court held was required in AUS17. It does not appear that his Honour was referred to CSR16 or BTW17, or that his Honour was asked to consider whether the Authority understood ‘credible’ to mean ‘capable of being believed’. I therefore consider this case to be of limited relevance to the issue to be determined in the present case.
(e)In FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57, O’Callaghan J considered a decision in which the Authority referred to the appellant’s previous opportunities to provide new information and then said ‘I consider that he has raised new claims again so late, leads me to doubt the genuineness of the new information’. His Honour rejected the appellant’s contention that by expressing ‘doubts’ as to the genuineness of the new information, the Authority did not properly assess whether the information was credible in the sense of ‘capable of being believed’. His Honour also noted that the Court is not concerned with ‘looseness in the language’ or ‘unhappy phrasing’ of a decision-maker: see [14], [26]-[28].
(f)In DPT17, Colvin J found that some parts of the Authority’s reasoning relevant to its assessment of the requirements in s 473DD, such as describing evidence as ‘unconvincing and insufficient’, reflect ‘the language of the evaluation of the persuasiveness of the evidence when it comes to establishing the claim’ and are ‘not indicative of a consideration as to whether the information itself is credible such that it might be received as relevant information for the purposes of deciding whether the claims should be accepted as true’: see [34]. However, his Honour concluded at [37] that:
… whilst there are aspects of the reasons that might be read as indicating that the Authority undertook an evaluation as to whether to accept the information as true, having regard to the reasons as a whole, the focus was on the credibility of the information and the articulation of the Authority’s concerns as to why the information, in the view of the reviewer, was not capable of being believed.
[2] The applicant in his submissions refers to [52] of this judgment as supportive of his case. However, the judgment has only 42 paragraphs and the reference to [52] appears to be a reference to an extract of the applicant’s submissions, set out at [38] of the judgment and rejected by her Honour at [39].
While these cases may provide some guidance as to the types of reasoning that the courts have, and have not, found to be indicative of the Authority understanding that ‘credible’ information is information that is ‘capable of being believed’, my task is of course to consider the particular reasoning employed by the Authority in the present case, with reference to the principles articulated in cases such as CSR16 and BTW17.
New information before the Authority and the Authority’s assessment of that information against the requirements of s 473DD
As indicated above, the applicant provided new information to the Authority in relation to his involvement with the LTTE.
The Authority identified this as new information and considered whether it met the requirements of s 473DD of the Migration Act at [19]-[21] of its reasons, where it said (footnotes omitted):
19.The applicant’s new claims about his LTTE activities are significantly different from the claims he made about this issue before the delegate. In his 2015 [Safe Haven Enterprise visa (SHEV)] Application and 2016 protection visa interview he said he was not an LTTE member, and had not conducted military training with the organisation, but asserted had been compelled to perform forced labour on behalf of the LTTE and been trained how to build bunkers. However, in his 2016 submission, he asserted that in fact, in Sri Lanka he had performed around three months of training with the LTTE; that he had been sent to the “frontline” where he worked as a sentry; that he was well known to LTTE commanders as an LTTE member; and that he feared he would be forced to undergo rehabilitation upon return to Sri Lanka. These are significant revisions from the claims he made before the delegate (where he had denied being a member of the LTTE). The 2022 submission advanced further claims in relation to the applicant’s association with the LTTE. This submission variously describes the applicant as a “member” of the LTTE, as an LTTE “cadre”, and as an LTTE “combatant”. These claims were also not advanced before the delegate. These are all new claims. The 2022 submission asserts the applicant did not reveal his true LTTE connections as he had a fear of receiving an adverse security appraisal from the Australian Security Intelligence Organisation (ASIO) and of being deported. It cites the 2009 [Sydney Morning Herald (SMH)] article, the 2013 [Australian Human Rights Commission (AHRC)] report in support of the applicant’s new claims about his LTTE involvement. As these documents are provided in support of the applicant’s new LTTE’s claims, it is convenient to consider them together with the new claim.
20.The applicant’s new LTTE claims all relate to his personal activities. As they related to him personally, he had knowledge of them before he came to Australia. Both the 2009 SMH article and the 2013 AHRC report which are offered in support of these LTTE claims, predate the delegate’s decision by some years. In the circumstances, even taking into account the reasons he has offered in submissions, I am not satisfied that the applicant’s new LTTE claims, or the documents cited in support of these claims, could not have been provided before the s.65 Decision was made and so s.473DD(b)(i) is not met for these new claims.
21.On their face, the applicant’s new LTTE claims are personal information in the relevant sense. However, these new claims are totally at odds with the claims he made previously. Before the delegate he had consistently asserted that he was not an LTTE member. He had made these assertions in his 2013 arrival interview, in his 2015 SHEV Application and in his 2016 protection visa interview. During his protection visa interview, he expressly denied that he had ever engaged in military service. As with his new Passport claims, the 2016 submission argues that the applicant’s detention at the time he submitted his SHEV Application; his lack of in person representation and his “intense” fears of being returned to Sri Lanka were the reasons he did not make these claims before the delegate. In my view, the explanations offered by the applicant for why he did not mention his LTTE membership earlier are unpersuasive since his 2015 protection visa application had been prepared with assistance from a migration agent and a Tamil interpreter who read the contents of his application back to him. In these circumstances it is clear that when this applicant lodged his protection visa application with advice from a migration agent who would have explained to him the visa assessment process, including the importance of telling his full story, and the possibility of adverse consequences if he did not tell the whole truth. Similar warnings were given to the applicant before his protection visa interview. Throughout his SHEV Application and in his protection visa interview he had asserted his original account (of not being an LTTE member) was true and in his protection visa interview, he swore an oath that he would provide a true account. In the circumstances, I am simply not persuaded that the applicant’s revised account of his life, including membership of the LTTE is credible personable information in the relevant sense and so s.473DD(b)(ii) is not met for the applicant’s new LTTE claims, nor for the documents provided to support these claims. As neither limb of s.473DD(b) are met for the applicant’s new LTTE claims, or for the documents provided in support of these claims, I have not considered them.
In assessing whether the new information met the requirements of s 473DD(b)(ii) of the Migration Act, did the Authority require the new information to be ‘true’ rather than ‘capable of being believed’?
The applicant’s first assertion is that, properly construed, the Authority’s reasons reflect that it required itself to be satisfied that the new information was true, rather than capable of belief.
In advancing this submission, the applicant focused heavily on the use of ‘persuasion’ in the Authority’s reasons. The Authority referred to whether it was persuaded of something in two places at [21] of its reasons, namely (emphasis added):
(a)the Authority considered that ‘the explanations offered by the applicant for why he did not mention his LTTE membership earlier are unpersuasive’; and
(b)the Authority was ‘simply not persuaded that the applicant’s revised account of his life, including membership of the LTTE is credible personal information in the relevant sense’.
The applicant compared this with the use of similar terms in the Authority’s substantive consideration of the applicant’s claims, including that (emphasis added):
(a)the Authority referred to differences in the applicant’s claims of prior interactions with the LTTE as articulated in his protection visa application and as articulated in his protection visa interview and considered that the applicant’s ‘explanations during the protection visa interview about his failure to mention these issues were unpersuasive’ (at [38]);
(b)the Authority considered that the applicant’s explanation in response to a question from the delegate as to why the authorities would be seeking his wife long after the relevant events had occurred to be ‘unpersuasive’ and that it ‘did not address the delegate’s question’ (at [41]);
(c)the Authority considered that the applicant’s claims that other members or supporters of the LTTE were jealous of him were, on his own evidence, speculative and the Authority did ‘not find these claims to be persuasive’ (at [44]); and
(d)noting the lack of evidence of any person the applicant knows suffering ongoing harm for being a Tamil or because of their residence in the north, the Authority considered that it ‘seems unpersuasive to argue that this would be a problem now’ (at [62]).
The applicant submitted that a test of ‘persuasiveness’ is a mode of analysis belonging to a search for the truth and not whether something is possibly true. A claim may be unpersuasive yet still be capable of belief. The applicant submitted that the use of similar expressions of ‘persuasiveness’ at the anterior stage and the deliberative stages of the Authority’s reasons tends to show that the test was assimilated to the same ‘truthfulness’ standard.
The Minister, on the other hand, submitted that when the Authority reasons are properly read the Authority is stating that it was not persuaded the new information was credible. The Minister submitted that the word ‘persuaded’ does not necessarily relate to being persuaded that something is true, but rather connotes that the Authority had been compelled to do or accept something because there is a good reason to do so. The interpretation of the word ‘persuaded’ is contextually dependent and the applicant’s reliance on the word in other parts of its reasons is misconceived. The Minister submitted that in the present case when the Authority said it was not persuaded that the new claims were credible personal information in the relevant sense, it should be interpreted as meaning that the Authority was not compelled to accept or was not persuaded that the claims were capable of being believed.
In my view, the Authority’s use of terms relating to ‘persuasiveness’ is not determinative of this ground. I accept the Minister’s submission that the interpretation of the word ‘persuaded’ is dependent on the context in which it is used.
That the Authority referred to persuasiveness at both the antecedent and deliberative stages of its reasons does not, of itself, show that the Authority misunderstood the relevant test for the purposes of s 473DD(b)(ii) of the Migration Act, and the references to persuasiveness in the deliberative stages of the Authority’s reasons do not assist the applicant.
In construing the Authority’s reasons, it is necessary to look at the whole of the relevant reasons, and in the context of the references to persuasiveness, the precise matter of which the Authority was not persuaded.
In the context of [21] of its reasons, the Authority’s first reference to persuasiveness was a reference to the Authority not being persuaded of the applicant’s explanations as to why he did not mention his LTTE membership at an earlier time. I do not understand the applicant to be challenging this aspect of the Authority’s reasoning on its own. In any event, the concept of persuasiveness in that context relates to the applicant’s explanation, which is relevant to, but not determinative of, whether the new information is capable of being believed.
The critical finding for the purpose of the applicant’s ground is the finding that the Authority was ‘simply not persuaded that the applicant’s revised account of his life, including membership of the LTTE is credible personal information in the relevant sense’. Both parties submitted at the hearing that I should not place any weight on the words ‘in the relevant sense’ and I agree that this is appropriate. Those words are ambiguous and do not, on their own, indicate what the Authority considered the ‘relevant sense’ to be.
The key finding of the Authority is essentially a finding that the Authority was not persuaded that the new information was credible personal information. In this context, the word ‘persuaded’ appears to be synonymous with the word ‘satisfied’ and does not demonstrate that the Authority misconstrued the statutory test for the purposes of s 473DD(b)(ii) of the Migration Act. At the hearing, in response to a question from me, Counsel for the applicant acknowledged that if the Authority had said ‘I am not persuaded that the new information is capable of being believed’, this ground would not have been raised. This acknowledgment reinforces that the use of the phrase ‘I am simply not persuaded’ is not the critical issue for the purposes of this ground.
The real question for the purposes of resolving this ground is what the Authority meant by ‘credible personal information’. The use of this phrase in the Authority’s reasons reflects the language used in s 473DD(b)(ii) of the Migration Act and cannot of itself reflect that the Authority imposed too high a standard.
I therefore look to the Authority’s reasons at [21] as a whole (and in the context of the decision as a whole) in order to properly construe what the Authority meant by the phrase ‘credible personal information’. Read fairly, there is nothing in the Authority’s reasons that indicates that the Authority proceeded on an understanding that the applicant’s new information must be true to be credible. Nor is there anything in the Authority’s reasons that indicates that the Authority did not understand the word ‘credible’ to mean ‘capable of being believed’. On a fair reading of the Authority’s reasons, the Authority found that the new information was evidently not credible, in circumstances where the claims the subject of the new information were raised late, were inconsistent with the claims previously raised by the applicant, and where the Authority did not accept the applicant’s explanation as to why he did not raise the claims at an earlier stage.
In these circumstances, the Authority’s finding amounts to a finding that the new information was not capable of being believed.
If the Authority found that the information was not ‘capable of being believed’ due to inconsistencies, was this illogical?
Alternatively, the applicant submitted that if the Authority applied a test of ‘incapable of belief’ when assessing whether the new information was credible for the purposes of s 473DD(b)(ii) of the Migration Act, the falsifying information was the different, previously made claim made by the applicant about his involvement with the LTTE. Counsel for the applicant submitted that to logically find that new information, inconsistent with existing information, was incapable of belief, it must be satisfied that the existing information is incapable of doubt.
The applicant submitted that the Authority did not accept the previously made LTTE claim in whole, instead accepting that the applicant had provided some support for the LTTE, such as for festivals and memorials, but expressing ‘doubts’ about his wider claim of performing forced labour by digging bunkers and helping the injured.
The Minister submitted that it is logical for both the new claims and the earlier claims to be incapable of belief or untrue or for parts of the earlier claims to be incapable of belief or untrue. The critical issue for the Authority was that there was an inconsistency between the two.
At the hearing, Counsel for the applicant accepted that the claims in the new information and the claims in the existing review material may both be found to be untrue, but only if one applied the same standard of persuasiveness.
I do not consider that there is any illogicality or irrationality, in the sense described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131] and [135], in the Authority’s finding for the purposes of s 473DD(b)(ii) of the Migration Act, as alleged by the applicant.
This is not a case where one of either the applicant’s previously advanced LTTE claims or new LTTE claims had to be true. Both could be false. The Authority did not need to be satisfied that the previously advanced LTTE claims were incapable of doubt before it could be satisfied that the new LTTE claims were not capable of being believed. It was open to the Authority, acting logically and rationally, to proceed on the basis that the applicant’s LTTE claims in the new information were not capable of being believed in circumstances where the Authority found that the claims were raised late, were ‘totally at odds’ with the previously advanced LTTE claims and where the Authority did not accept the applicant’s explanation as to why the new claims had not been raised previously. The logicality of this finding is not dependent on the Authority’s views of the previously advanced LTTE claims.
Materiality
I have found above that neither of the applicant’s alternative particulars establishes jurisdictional error in the Authority’s approach to s 473DD(b)(ii) of the Migration Act. In these circumstances, it is unnecessary to address materiality.
I do, however, acknowledge that both parties filed post-hearing submissions addressing materiality. The further submissions were filed in circumstances where:
(a)the applicant, in addressing materiality in his original written submissions, relied on Colvin J’s judgment in DPT17 and submitted that, where there is an established error under s 473DD of the Migration Act, the relevant question for materiality purposes is whether the possibility of a different s 473DD outcome was denied, not whether the possibility of a different outcome on the review was denied;
(b)the Minister, in addressing materiality in his original written submissions, submitted that where an error is identified in relation to the Authority’s consideration of either s 473DD(a) or (b) of the Migration Act:
(i)an antecedent issue will arise as to whether that error could have materially affected the Authority’s procedural decision not to consider the new information (citing ABH18 v Minister for Home Affairs [2020] FCA 620 (ABH18) at [36]); and
(ii)if that antecedent step is established, then the Court ought to consider whether the ultimate outcome of the review could have been different (citing ABH18 at [45]; EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657 at [58]; CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345 (CDJ19) at [39]-[41]); and
(c)I invited submissions at the hearing as to how I should resolve any tension in apparently conflicting Federal Court authorities, noting that the Full Court had recently declined in AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at [89] to resolve any inconsistency between DPT17 and other authorities.
In their further written submissions, both parties accepted that where there are conflicting Federal Court authorities, the most recent authority will be the one that is binding on this Court: SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; [2008] FCAFC 91 at [42]. Both parties accepted that Markovic J’s judgment in CDJ19 was the most recent judgment and is therefore binding on me. In that judgment, her Honour found that the error in the approach to s 473DD was not material on the basis that, had the Authority considered the new information, it could not have reached a different result on the review: CDJ19 at [39]-[41]. The applicant, however, submitted that CDJ19 was wrongly decided.
Both parties also made submissions on whether the alleged error, if established, could realistically have deprived the applicant of the possibility of a successful outcome on the review, but it is not necessary to summarise those submissions here.
I thank both parties for filing the additional submissions in this matter. However, in circumstances where I have found no error in the Authority’s approach to s 473DD(b)(ii) of the Migration Act, it is neither necessary nor desirable in the circumstances of this case to make findings based on the submissions addressing materiality.
CONCLUSION
The applicant has not established that the Authority decision is affected by jurisdictional error. It follows that the application for judicial review must be dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 16 February 2024
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