BYX22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 141
•21 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYX22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 141
File number(s): BRG 244 of 2022 Judgment of: JUDGE EGAN Date of judgment: 21 February 2024 Catchwords: MIGRATION LAW – whether a further TPV interview raised new facts which adversely impacted upon the credibility of the applicant – whether new facts were merely an amplification upon earlier claims made by the applicant – whether the Authority erred in the way in which it categorised the new facts – jurisdictional error established – Application granted. Legislation: Migration Act 1958 (Cth), ss 36, 473DC, 473DF Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
AVQ15 v Minister for Immigration and Border Protection & Anor (2018) 266 FCR 83
BEL16 v Minister for Home Affairs (2019) 80 AAR 170
Commonwealth v Snell (2019) 269 FCR 18
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 24
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of last submission/s: 4 December 2023 Date of hearing: 4 December 2023 Place: Brisbane Solicitor for the Applicant: Simon Mason, Corney & Lind Lawyers Solicitor for the First Respondent: Sarah Black, Minter Ellison Second Respondent: Immigration Assessment Authority ORDERS
BRG 244 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYX22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
21 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application for Review filed on 13 June 2022 be granted.
2.The decision of the Immigration Assessment Authority made on 10 May 2022 be quashed.
3.A writ of mandamus issue directed to the Immigration Assessment Authority requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Immigration Assessment Authority for rehearing.
4.For the purpose of the Immigration Assessment Authority again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 10 May 2022.
5.The First Respondent pay the Applicant’s costs of and incidental to the Application for Review fixed in the amount of $8,371.00.
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 EGAN
INTRODUCTION
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on or about 13 August 2012.
On 16 January 2013, the applicant applied for a Class XD Temporary Protection Visa (TPV) (Class XA) (Subclass 866).
On 17 March 2014, a delegate of the Minister refused the visa application.
After a review of that decision by the Refugee Review Tribunal (RRT), the Department was directed to issue a temporary protection visa. The RRT found the applicant to be a credible witness who presented his evidence in a clear and straightforward manner without embellishment; found that the applicant was forced to do some training and provide assistance to the LTTE from about 2006-2008; found that the applicant was put in an IDP camp run by the Sri Lankan army in about 2008 and kept there for about one year; found that the applicant’s admissions of receiving training from the LTTE and providing assistance to the LTTE caused the Sri Lankan authorities to mark him with suspicion, so that they subjected him to ongoing harassment in the form of questioning, stringent reporting requirements and threats. [1]
[1] Court Book (CB) p. 173 – paragraphs 27, 28 and 29 of the reasons of the RRT dated 20 March 2015.
On 8 September 2015, the applicant was granted a Class XD Temporary Protection Visa (Subclass 785) valid until 8 September 2018.
On 8 June 2018, the applicant lodged an application for a Class XD Temporary Protection (Subsequent) (Subclass 785) Visa.
On 23 February 2022, a different delegate refused to grant the visa application on the ground that the applicant did not have such a high profile that would indicate that he would face a real chance of serious harm, or a real risk of significant harm, in Sri Lanka, should he be returned there.
The matter was referred to the Immigration Assessment Authority (the Authority) for review.
On 10 May 2022, the Authority affirmed the decision of the delegate not to grant the visa application.
On 13 June 2022, the applicant filed an Originating Application for Review of the decision of the Authority.
Grounds of Review
The Grounds of Review were as follows:
Ground 1 - Errors of law - Legal Unreasonableness - Irrational or Illogical Reasoning
7.We submit that the Decision reflects several instances of irrational or illogical reasoning.
First Instance
8. At the Interview, dated 16 November 2021, the Applicant provided additional information regarding his involvement with the LTTE between 2006 to 2008. Specifically, the Applicant provided additional information in relation to this involvement, advancing the claim that he also assisted in unloading Sea Tiger boats.
9. The Reviewer held;
a) "I am concerned by the late advance of the claim he unloaded boats for the Sea Tigers."
b) "I place significant weight on his failure to advance this claim, a claim he is now claiming is significant, in his earlier statements or interviews."
c) "I do not accept the claim that he assisted the Sea Tigers or unloaded Sea Tigers boats."
10. During the interview, dated 16 November 2021, the Applicant stated words to the effect of "I cannot recall whether I previously told the Department."
11. At no time did on the record the Applicant advance the claim that his involvement in unloading these boats was:
a) a significant or substantial aspect of his involvement in the L TTE;
b) more than a universal labour obligation levied against Tamil fishermen in the region;
c) provided by way of advancing a novel and fresh claim for protection rather than simply recollective detail;
d) a fresh ground of fact in support of his profile of concern; or
e) information that was held or known by the authorities to the knowledge of the applicant.
12. We submit the Reviewer fell into legal error by applying irrational or illogical reasoning in concluding
a) that the Applicant's claim to unload boats was a "significant" element of his claim rather than simply recollective detail;
b) that such recollective detail should be rejected due to not having been previously advanced; and,
c) This kind of additional recollective detail could reasonably form the basis for an adverse credibility assessment.
Second Instance
13. At the Interview, dated 16 November 2021, the Applicant provided additional information regarding his screening/questioning by the authorities. Specifically, the Applicant made the claim that there was information that was withheld from the authorities regarding his involvement with the LTTE.
14. The Reviewer held:
a) The applicant provided fresh information about his involvement with the authorities.
b) While this was not inconsistent information, it was information forming a factual claim that had not previously been advanced in support of the Applicant's profile of concern;
c) "(the Applicant's) account of being able to conceal some of his involvement is also difficult to accept noting the use of Tamil informers in the camps", and inconsistent with country information.
15. During the interview, dated 16 November 2021, the Applicant stated words to the effect of "I also did not tell the authorities that I was sent to the front line.
16. At no time did on the record of his interactions, the Applicant advance the claim that:
a) Involvement with the boats was the only element of information that he had withheld from the authorities;
b) A such involvement was a factual ground for his profile of concern; or
c) was information that was held or known by the authorities to the knowledge of the applicant.
17. We submit the Reviewer fell into legal error in in applying irrational and illogical reasoning by way of:
a) Holding that the Applicant's claim not to have told the authorities he unload boats was a "significant" element of his claim rather than simply recollective detail;
b) that such recollective detail should be rejected due to not having been previously advanced; and,
c) This kind of additional recollective detail could reasonably form the basis for an adverse credibility assessment.
Third Instance
18. In reference to the holdings in respect of the above two factual findings, the Reviewer considered that such "fresh claims" supported an adverse credibility inference.
19. The Reviewer held:
a)"I have had regard to the RRT's assessment including the RRT's view of the applicant's demeanour, and I note the RRT found the applicant to be a credible witness. However, taking into account all the considerations I consider that the applicant has embellished the level of interest in him by the authorities in an attempt to enhance his protection claims;"
20. The Federal Court in BEL16 v Minister for Home Affairs [2019] FCA 1678 (11 October 2019) held that credibility findings can be affected by jurisdictional error when such findings proceed on the basis of irrational or illogical reasoning, at [16]
First, it is not in doubt that in assessing credibility, a Tribunal may rely upon inconsistencies properly so-called, but the Tribunal must reason carefully and fairly to avoid any undue propensity to scepticism. Indeed, an error may be identified in how the Tribunal went about its task if the Tribunal had approached the task in one or more of the following ways:
(a) Commencing a review of the material and evidence provided by an applicant with an unwarranted degree of scepticism.
(b) Engaging in confirmatory bias by inappropriately discounting material prima facie in support of the applicant's position before the totality of the material had been considered.
(c) Viewing inconsistencies, vagueness or omissions in the applicant's version of events without regard to imperfections in memory that naturally occur over time or due to stress or language difficulties .... In this respect, inconsistencies vagueness or omissions do not necessarily indicate a deliberate lack of truthfulness, although they may affect the assessment of reliability. Indeed, and conversely, too much detail and consistency may be "merely corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative" ... (citations removed)
21. We submit the Reviewer fell into legal error in reaching an adverse credibility finding by applying irrational or illogical reasoning by way of:
a) An unwarranted scepticism regarding the significance to the Applicant's credibility of additional recollective detail; and:
b) Irrational or illogical treatment of additional factual claims.
Ground 2 - Errors of law - Legal Unreasonableness - Failure to Take Into Account Previous Decision by Refugee Review Tribunal.
22. On 23 March 2015, the Refugee Review Tribunal considered the claims, evidence, and credibility of the Applicant and made a determination that the Applicant satisfied s.36(2)(a) of the Act. On 10 May 2022, under consideration of the same statutory threshold the Reviewer considered that s.36(2)(a) of the Act was not satisfied. The material before the Reviewer was substantially the same information as was before the Member.
23. Federal Court of Australia Full Court has quantified the weight that must be provided to prior decisions where the same material is subject to a fresh consideration under the same power to exercise a discretion.
24. Commonwealth of Australia v Snell [2019] FCAFC 57 is the leading authority on how an administrative decision maker's power may be constrained by an earlier exercise of the same power. Here the Court held at [76]:
Given that the existence of an earlier decision does not give rise to any limitation on the material which the Tribunal might consider on a review of a decision under the Seafarers Act, what then is the position when it is confronted with the existence of an earlier inconsistent decision? ... In undertaking (a) reconsideration, both the decision-maker and the Tribunal are required to make a decision in accordance with the Act which necessitates assessing all material relevant to the issues to be decided ... An earlier decision by the decision-maker (including an earlier decision of the Tribunal which is deemed to be that of the decision-maker) is information or material with which the Tribunal may inform itself (s 33(1 )(c) of the AA T Act) and it can give it the weight which it considers to be appropriate. Where no new evidence has been advanced which relevantly undermines or alters the effect of the earlier decision it is most likely that, if the application for review is not disposed of in summary manner, the earlier decision will have significant if not overwhelming weight. (our emphasis)
25. Here the Court sets out the principle; where an administrative decision maker (or IAA Reviewer, as the case may be) is provided an earlier decision pursuant to the same power and in respect of the same facts then the prior decision is relevant information or material before the decision maker that:
a) Where there is new evidence or fresh material, should be accorded the weight the decision maker "considers to be appropriate"; or,
b)Where there is no new evidence or fresh material, should be accorded "significant if not overwhelming weight."
26. The principle in Snell supposes a baseline presumption of weight to be accepted in respect of a previous set of factual findings. This reflects the broader principal of fairness in administrative decision making that promotes and enhances confidence in the reasonableness and consistency of successive decisions.
27. The Reviewer held:
a) The "RRT accepted the applicant's claims in full";
b) "The RRT found the applicant to be "a credible witness" because "he presented his evidence in a clear and straightforward manner without apparent embellishment" as well as because his evidence "was consistent with available country information".";
c) "I consider it necessary to balance the RRT decision and findings on credibility against the weight of country information that questions a finding the applicant's claim is genuine, also taking into account information given in the protection visa interview and later submissions which the RRT did not have the benefit of and noting particularly that I have not accepted the claim that he withheld information about his past LTTE activities from the authorities in the camp."
28. We submit the Reviewer fell into legal error by:
a) failing to accord the decision of the RRT sufficient baseline weight;
b) considering the "Sea Tigers claim" as the type of new evidence or fresh information that vitiated an obligation to provide significant weight to the decision of the RRT, in circumstances where the "Sea Tigers Claim" was only recollective detail and not a significant new claim;
c) considering the "undisclosed L TTE involvement claim" as the type of new evidence or fresh information that vitiated an obligation to provide significant weight to the decision of the RRT, in circumstances where the "undisclosed L TIE involvement" was only recollective detail and not a significant new claim; and
d) by failing generally to accord weight the decision of the RRT in their finding
At [9] of the reasons of the Authority, the claims of the applicant for protection were recorded as follows:
9.The applicant submitted a detailed statement of claims with his 2013 (866) application. He updated his claims in his 2018 TPV application and in statements dated 19 February 2021 and 23 November 2021. He was interviewed by the delegate on 16 November 2021. His claims can be summarised as follows:
•The applicant is a Tamil born in the Jaffna District, Northern Province, Sri Lanka.
•He and his family were displaced at times due to the civil war conflict and the tsunami.
•He married in 2006 and his son was born in 2007; his wife and child both remain living in Sri Lanka.
•After his marriage the applicant lived in the areas of Mullaitivu and Kilinochchi in the Vanni region of the Northern Province.
•The civil war fighting escalated and all Tamils were required to assist the LTTE and as a result he and his brother were forcibly recruited. His brother refused to fight but was taken to a fighting area, he then escaped from the LTTE but was later recaptured and tortured.
•From around 2006 to 2008 the applicant was given training by the LTTE and was required to work on the frontline in the Vanni area for a number of days every few months digging bunkers, transporting injured soldiers, defending the LTTE camp and helping prepare food. He was also involved in unloading the Sea Tiger boats.
•The fighting intensified and around late 2008/early 2009 he and his family boarded a boat and were able to travel to Trincomalee where they crossed over into government-controlled territory. From here they were processed and taken to a displaced persons (IDP) camp in the Mannar area.
•At the Mannar camp the applicant was questioned about his activities in the Vanni. He told the authorities that he had been forcibly required to provide assistance, but he did not tell them the extent of his involvement or that he had unloaded Sea Tiger boats.
•The applicant and his family remained in the camp until October 2009 after which they were transferred to another camp before being resettled in Jaffna District in October 2010.
•While living in Jaffna the applicant came to the attention of the Criminal Investigation Division (CID) who had obtained information or been informed of his LTTE training/involvement. In January 2011 he was questioned at the CID offices and after this he was made to report regularly to sign.
•On the last occasion he reported he was threatened with torture and told to sign a paper. He was told if he did not sign, he would be sent to the CID office in Colombo. The applicant refused to sign the paper.
•The applicant was fearful for his safety and decided to leave Sri Lanka. He left illegally by boat in July 2012.
•After his departure the CID visited his wife to enquire about him. When they learned he had left Sri Lanka his wife was told she had to come to the office to sign; she was detained there for a period when she attended.
•The CID have continued to make enquiries about him and to harass his wife.
•He was involved in a matter in Australia in or around 2019 that led to him being charged with a minor criminal matter and he understands the other party involved in this matter has told his own family in Sri Lanka and that this has been the subject of village gossip and passed onto the CID. The CID visited his wife in early 2020 and told her the applicant must attend their offices when he returns to Sri Lanka.
•The applicant is aware of accounts of detainees given poison or harmful vaccines while in the camps. He fears he may have been poisoned and he is concerned the authorities are attempting to ethnically cleanse the Tamil population through vaccines that cause cancer. He also fears the authorities are not able to provide adequate medical care for Covid-19.
•As a result of his traumatic experiences and the longstanding threat and fear of torture he has “significant ongoing mental health challenges”. He is overwhelmed with anxiety about the future and is reliant on medication to be able to sleep. He struggles to remember dates and details of events.
•The applicant fears harm as a Tamil and that he will be perceived as an LTTE sympathiser because of his past involvement with the LTTE. He fears harm as a Tamil previously detained and targeted by the authorities.
•He fears harm because of his illegal departure and as a failed asylum seeker. He left the country while still required to report to the CID and he did not sign the paper as they demanded. He fears he will be taken into custody on return and harmed while held.
•If he is returned to Sri Lanka he will face hardship and would lose the ability to support his family.
Ground 1 of the Application for Review was a claim that the decision of the Authority made on 10 May 2022 was infected with irrationality or illogicality. The paragraphs of the reasons of the Authority criticised as being irrational or illogical were [18], [22] and [23]. Those paragraphs were as follows:
18.At times when putting his claims or recounting these at interviews the applicant has mentioned some activities and not others. In this regard I note the cautions in his representative’s submission about varying information being given in different accounts. But I am concerned by the late advance of the claim he unloaded boats for the Sea Tigers. This information was first advanced at the TPV interview in November 2021; he did not mention this in his Arrival Entry interview or in his 2013 866 application or the related interview; or to the RRT in 2015; it was not included in the updated information he gave in his 2018 TPV application; or in the February 2021 statement.
…
22.The TPV delegate outlined his concerns about the Sea Tiger claim but accepted as “plausible” that the unit the applicant was assisting “may have provided assistance at one time or another” to the Sea Tigers but the delegate found “any assistance provided by the applicant to the Sea Tigers in these circumstances was of a minor, inconsequential nature and not of the nature, unloading weapons etc … claimed by the applicant”. The delegate commented the applicant’s claims regarding the Sea Tigers “appear to have been either embellished or fabricated to enhance his claims for protection”. I note the delegate has found as plausible that the group the applicant was working for “may” have assisted the Sea Tigers, but I am not satisfied that the applicant unloaded Sea Tiger boats as he has claimed or that he assisted the Sea Tigers in any other manner. I place significant weight on his failure to advance this claim, a claim he is now claiming is significant, in his earlier statements or interviews. I am not persuaded that this is simply “further information” that has become “forthcoming” at a later enquiry.
23.Considered overall I find the applicant’s account that he provided support to the LTTE which included being on the frontline in the Vanni area for a number of days every few months digging bunkers, transporting injured soldiers, and helping prepare food to be plausible. I have noted above the reference in the Arrival Entry interview to shooting the military but I conclude that later clarification by the applicant has indicated any defence of the LTTE camp when it was attacked by the army involved self-defence and that the applicant did not himself engage in fighting or the use of weapons. I accept these claims. I do not accept the claim that he assisted the Sea Tigers or unloaded Sea Tigers boats.
The way in which the Authority reasoned that the applicant was not a witness of credit was firstly “ … to balance the RRT decision and findings on credibility against the weight of country information that questions a finding the applicants claim is genuine …”, [2] and secondly, to categorise information about assisting the Sea Tigers with the unloading of boats as new information. Each of those findings was important.
[2] See [40} of the reasons of the Authority.
As to credibility generally, it was found by the RRT that the relevant DFAT report of 2014 relating to Sri Lanka (which report recorded that thousands of LTTE members had been arrested by the army) supported the claims made by the applicant. [3] Many such LTTE members included former combatants and those employed in administrative or other roles who had been arrested and detained in rehabilitation centres after the conflict.
[3] [36] – [42] inclusive of the reasons of the RRT at CB p. 175-176
In his statutory declaration dated 6 January 2013 (which was said to have been prepared by a Victorian based legal practitioner named Yoko Kamada), the applicant declared as follows when referring to the type of assistance he was required to provide to the LTTE:
“6. As forced recruits we were not treated like other fighting members of the LTTE – we played an assistant role and were not sent directly into battle. We helped carry injured soldiers and defended the LTTE camps when they were attacked by the Sri Lankan Army. We only ever returned fire. We performed menial duties like preparing food and caring for the injured LTTE fighters in hospital.” [4]
[4] Statutory Declaration of the applicant at [6] – CB 120 – 122.
There are aspects of what the applicant last said which are relevant. First, the statement was by no means exhaustive in terms of the listed menial tasks which were said to have been performed by him. The drafter of the declaration left a reader of it with the impression that only a few of the many tasks the applicant was forced to perform whilst aiding the LTTE were listed. Secondly, the task of unloading boats for the Sea Tigers would fall into the category of a menial task. Why then would the Authority become so focussed upon the claim by the applicant that he had claimed that he had also performed the menial task of unloading boats when, consistently with what the applicant said in his 6 January 2013 interview at [6], the Authority found, at [23] of its reasons, that the applicant’s claims about his being on the front line were credible. Why was the Authority so focussed in circumstances where the Authority knew that the applicant, in his declaration made at an early time, had said that he had fired weapons in defence of LTTE positions. The focus of the Authority ought to have been on the nature of the applicant’s front -line involvement after he had been forced to assist the LTTE, rather than looking with an eye too keenly attuned to error when analysing whether every aspect of the evidence before it some ten (10) years after the applicant’s first interview was entirely consistent or not. [5]
[5] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR
The Authority sought to discredit the applicant’s claims about the applicant’s involvement with the Sea Tigers in circumstances where such claims appeared to be merely an amplification (at the time of the holding of the most recent TPV interview) upon what the applicant had already told the first and second delegates about his having assisted the LTTE during the conflict period. The relevant part of the November 2021 TPV interview, conducted as it was through an interpreter, was as follows: [6]
[6] See transcript pp. 10.350 – 11.420 being annexure MH01 to the affidavit of Maxwell Hopkins filed on
S: So when were you forced to start helping and training with the L TTE?
SB: It was after I went to Wanni in 2005/6 I was training in 2007 and 8, I was doing this while I was living in Wanni.
S: Okay so can you tell me a little bit more about how, like the training you had to do and the help you had to give, how that was organised?
SB: How to carry injured people, how to give first aid and carry the people to the [?]. Then how to make bunkers, you know from the trees and to make bunkers and in the event if shells start falling how to defend ourselves like lying down to lie down in the ground or take shelter in shell bunkers was the training provided.
S: Which branch of the L TTE provided the training?
I: We were, he asked what you mean by division? So he's understood and he said he says we were on the, we were living on the seashore so we were provided the training by the Sea Tigers.
S: And did they have a particular name?
SB: No is known as Sea Tigers.
S: Okay. When you were brought to the front lines as a help alright was it the Sea Divers that arranged that as well?
SB: Yes all by Sea Tigers.
S: So am I right in understanding that the Sea Divers managed all of your involvement with the LTTE?
SB: That's correct only through Sea Tigers.
S: So did you have a rank in the Sea Tigers?
SB: I was not a member of Sea Tigers but I was, we were called as the like a border force, border force is the word that they used to help them protect. That's compulsory 15 days and we have to do them work. Without it they will not allow us to fish so that is fishing is not allowed for us so to look after my family I had to do this.
S: NAME WITHELD can you turn your camera back on please?
SB: Four siblings, I am born to a fisherman family yeah.
S: NAME WITHELD can you turn your camera on please?
I: I'm just giving him instructions to use the centre button. He say is switched on, video is on now.
S: Okay. Can he try again, we can't see you, I can't see you, oh there you are great thank you very much.
SB: I don't know how to use this video that much.
S: That's alright. How many times did you go to the front line?
SB: Okay. They, I don't know sir. Many times I am not sure about the, it's the number of times but between 2007 and 2009 every three months we must do our for duty for 15 days. We must work minimum 15 days so once in three months I used to go for 15 days. So this nearly two to three years time.
S: And did you ever fire a weapon in combat?
SB: No no, I have never carried a gun or fired a weapon for L TTE but I have helped in unloading the boats, Sea Tigers boats arrive, I was asked to help in those work.
S: Have you ever been arrested by the Sri Lankan authorities?
SB: So he used to work[?] then he corrected to CID so I was questioning yes I have[?] by civil authorities later corrected to CID. Three days before I came once in three days I was required to sign to show my presence.
S: Right but have you ever been arrested by the Sri Lankan authorities?
SB: No I was not really sort of arrested and put in a camp, but they were questioning me and many times they took me for questioning about my whether I'm a member of the, they accused me of being LTTE member and they asked me to sign a paper and they asked me to come and sign attendance every three days. That is why when I got scared and left the country.
S: Did anything specific make, motivate you to leave the country?
SB: He says I don't understand repeat.
S: Did something happen specifically that made you leave the country?
SB: Yes something dreadful happened. The last time when I went to sign they showed me all they were showing me a paper they said I had to sign accepting that I was a L TTE member [?] and admitting that and they said if I don't accept that and accept that I will be shipped to the fourth floor in Colombo, I'll be sent to CID quarters for the questioning and they also threatened me to they said to me ah torture me and they showed me a wire. There was [?] on the table there was a wire, they threatened to beat me. I said no and that's why this incident made me do, decide to leave the country.
S: Okay so when you were in the building reporting when they showed you the wire and you said no what happened next?
SB: At that meeting they said I, you know you must sign, okay come next time you have to sign otherwise we send you away and that's the time I decided to leave the country and to take the boat to Australia.
S: Okay can, I'd like you to tell me more about what happened, how you moved, when you were in LTTE controlled areas alright now towards the end of the war when you moved into a government controlled area can you tell me a bit more about what happened. Tell me---
SB: We were, when the fighting intensified and the army was advanced in both sides to a shelling and we were caught in between and we moved towards safety and then eventually reached the shore and fortunately there was some city townsfolk some [?] they came to ferry people to Trincomalee with myself and family, my family escaped to Trincomalee.
That the applicant had not told the most recent delegate everything about all of his experiences at an earlier time was contextually of no moment. As was held by Beach J in BEL16 v Minister for Home Affairs (2019) 80 AAR 170 at 174:
“Third, to mention a claim to the Tribunal not having mentioned it to the delegate or vice versa may be relevant to credibility, but may also be reasonably explicable. Further, giving more detail on one occasion than another, or emphasizing different matters at different times, may be reasonably explicable by the context or the different stage of the relevant inquiry in a way that does not invite an adverse credibility finding.”
As was also held by Beach J in BEL16 at p. 174:
“Fifth, although in some circumstances it can be legitimate for the Tribunal to have regard to the timing of the making of a claim in assessing whether it is satisfied of the veracity of the claim, such an analysis is confined by principles of reasonableness, which includes as I have already indicated being ‘conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given’.”
It is noteworthy that the applicant arrived in Australia as an unauthorised maritime arrival in 2012, but that the most recent TPV interview took place in November 2021. One would not expect a person in the position of the applicant to give an identical account of events in November 2021 to the one given almost a decade earlier.
The Authority unreasonably, and without any evident and intelligible justification, placed too much reliance upon the applicant’s apparent failure to have earlier raised certain relevant factual matters in isolation - thereby leading it to make adverse credibility findings about the applicant - when the applicant had in fact made earlier general statements which were capable of encompassing the most recent matter raised, namely the unloading of the boats for the Sea Tigers. That approach was unreasonable in circumstances where the Authority could have invited the applicant to an interview to provide further information about the claimed assistance provided to the Sea Tigers under s 473DC of the Migration Act 1958 (Cth) (the Act), and thereafter conduct an interview under s 473DF of the Act, so as to assess for itself the question of the applicant’s credibility. [7]
[7] ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [18] – [25].
The Court respectfully adopts what was held by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66]This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76]As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
[8]
[8] AVQ15 v Minister for Immigration and Border Protection & Anor (2018) 266 FCR 83 at [28] per Kenny,
Having failed to conduct its own interview in circumstances where the question of credibility could have been reasonably resolved one way or another, the Court finds that the Authority erred in a jurisdictional way, particularly in circumstances where the RRT had earlier found the applicant to be a witness of credit. In that regard, the Court respectfully adopts what was held by the Full Court in Commonwealth v Snell (2019) 269 FCR 18 at [76] per Allsop CJ, Reeves and Derrington JJ as follows:
“[76]As Bennett J observed, the power in s 78 is untrammelled and there is no requirement to consider or take into account the earlier decision or to apply it. An earlier decision by the decision-maker (including an earlier decision of the Tribunal which is deemed to be that of the decision-maker) is information or material with which the Tribunal may inform itself (s 33(1)(c) of the AAT Act) and it can give it the weight which it considers to be appropriate. Where no new evidence has been advanced which relevantly undermines or alters the effect of the earlier decision it is most likely that, if the application for review is not disposed of in a summary manner, the earlier decision will have significant if not overwhelming weight. Where, on the other hand, new information is available which suggests the earlier decision was based on incorrect facts or limited knowledge, be it scientific knowledge or otherwise, the weight which might be afforded to the earlier decision may be minimal or non-existent.”
The Court finds that there was new information relating to the applicant’s interaction with the Sea Tigers, but that such information did not detract from, or alter in any significant way, the information provided by the applicant to the delegate in 2013.
The Court finds that had the Authority conducted an interview with the applicant - so as to appreciate for itself whether the applicant was a witness of credit or not concerning his alleged involvement with the Sea Tigers - it could realistically have arrived at a different decision. [9] The Court finds that the Authority erred in failing to do so.
[9] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 241 at [45]-[46] per Belle,
The Court finds that the applicant has made out Ground 1 of the Application for Review, and that the error on the part of the Authority was jurisdictional.
In the light of the Court’s finding on Ground 1 of the Application for Review, it is unnecessary to deal with Ground 2.
The Application for Review is granted, and the decision of the Authority made on 10 May 2022 is quashed.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 21 February 2024
593 per French, Sackville and Healy JJ at [46]-[47].
21 June 2023
Griffiths and Mortimer JJ.
Gageler and Keane JJ.
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