BZP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 76

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BZP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 76

File number(s):

SYG 1418 of 2017

Judgment of:

JUDGE STREET

Date of judgment:

24 September 2021

Catchwords:

MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – where the Authority made adverse credibility findings – where the Authority found that some of the applicant’s claims were not plausible – whether the Authority failed to have an evident and intelligible justification for its findings – whether the Authority’s findings were legally unreasonable – whether the Authority made adverse findings that were contrary to the delegate on the basis of demeanour – no jurisdictional error – amended application dismissed  

Legislation:

Migration Act 1958 (Cth) pt 7AA; ss 5H(1), 36(2)(a), 36(2)(aa), 473CB, 473DC, 473DD, 476

Cases cited:

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

Division:

Division 2 General Federal Law

Number of paragraphs:

77

Date of hearing:

27 July 2021

Place:

Sydney

Solicitor for the applicant:

Mr S Hodges

Solicitor for the respondent:

Mr J Hutton, Australian Government Solicitor

ORDERS

SYG 1418 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BZP17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	24 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The amended application is dismissed. 

2.The applicant pay the first respondent’s costs, fixed in the amount of $7,206.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review 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 STREET:

INTRODUCTION

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”). The application is in respect of an Immigration Assessment Authority (“the Authority”) decision under pt 7AA of the Act made on 13 April 2017, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Safe Haven Enterprise Visa (“the Visa”). 

   BACKGROUND AND APPLICANT’S CLAIMS

2. The applicant is a citizen of Sri Lanka and his claims were assessed against that country.

3. The applicant was found to be a Tamil from a particular district in the Eastern Province of Sri Lanka.

4. The applicant claimed to have been abducted, detained, beaten and threatened in 2005. The applicant claimed that in 2006, about six months following his release from detention, he travelled to Saudi Arabia.

5. The applicant alleged that, in 2008, Sri Lankan authorities accused the applicant’s relative of being a senior member of the Liberation Tigers of Tamil Eelam (“the LTTE”). The applicant alleged that, on his return to Sri Lanka in September 2008, he was detained and interrogated by Criminal Investigation Department (“CID”) officers. The applicant alleged that, approximately three months following his return, he received threatening letters from the Tamil Makkal Viduthalai Pulikal (“TMVP”).

6. The applicant alleged that, on 1 June 2012, he was arrested, stripped and detained by the CID, and asked if he was a LTTE supporter. The applicant alleged that unknown persons came to his home in search of him and that he received threatening phone calls. 

7. In September 2012, the applicant departed Sri Lanka. The applicant alleged that, since he has left, the authorities have come to his home several times. The applicant claimed that he fears he will be harmed or killed by the Sri Lankan authorities, the TMVP and Tamil paramilitary groups on account of his imputed LTTE links, his scarring, his illegal departure from Sri Lanka and his asylum application abroad. 

   THE DELEGATE’S DECISON

8. The applicant applied for the Visa on 24 December 2015.

9. The delegate found that the applicant’s core claims are mostly credible, but found that the applicant had exaggerated details of his claims. Whilst the delegate accepted it as plausible that the applicant was abducted by white van people sometime in 2005, the delegate did not accept that the applicant was treated in the manner described.

10. The delegate referred to the applicant’s claims that he had been unceasingly beaten and interrogated during a two-month period and that he had been strapped on a chair and given only water. The delegate found the applicant’s claims in that regard to be exaggerated. In that regard, the delegate found that the applicant’s claimed treatment was such that he would not have survived, and even if he did, he would not have been physically fit to get a job in the Middle East. The delegate found that the applicant’s claimed ordeal meant it would be implausible that the applicant would be fit to work overseas. 

11. The delegate referred to their finding, that the details of the applicant’s claim regarding his abduction were exaggerated, but accepted that he was abducted, detained, mistreated and then released after a period of time.

12. The delegate accepted the applicant’s claim in relation to a relative being arrested on the basis of allegations of being involved in the LTTE. The delegate found it plausible that the applicant was questioned at the airport when he returned from Saudi Arabia, as to whether he provided financial help to the LTTE.

13. The delegate referred to the applicant’s claim that he was invited for questioning by the TMVP a few months after his arrival from Saudi Arabia. The applicant presented a document purporting to come from the TMVP directly, requiring him to report to them on 29 January 2009. 

14. The delegate found it implausible that the TMVP would be vetting Tamil returnees. The delegate found it reasonable to presume that the motive of the TMVP was to ensure that the applicant was not a supporter of the LTTE.

15. The delegate also accepted that the applicant was arrested on 1 June 2012, and that the applicant was released on the night of that same day.

16. The delegate referred to the applicant’s claims that he was receiving threatening phone calls and being visited by persons in white vans several times. The delegate did not accept the veracity of this claim. The delegate referred to the fact that, from the applicant’s return in 2008 until 2012, he did not attract adverse attention from the authorities. The delegate also referred to the fact that the applicant was employed during that time, and did not have problems with the authorities.

17. The applicant alleged that he only had problems after his arrest on 1 June 2012. The delegate identified a document regarding the applicant’s arrest, which indicated that the arrest was related to an assault. The delegate found there was no indication that the applicant’s arrest was connected to any insurgency or LTTE related matter.

18. The delegate also identified that it was difficult to accept that the people in white vans would be inquiring about the applicant and visiting his home in attempts to abduct him. The delegate also made reference to the applicant being vague about how many times and where these visits of the white van people happened. The delegate identified the inconsistency of the applicant, who stated that it occurred on two occasions, and then after his arrest the applicant said that he was visited many times.

19. The delegate found it implausible that, given the white van people’s expertise, they would have failed to abduct the applicant after many attempts in a similar venue. The delegate found this claim to be implausible and did not accept that, after 1 June 2012, there were attempts to abduct the applicant. The delegate did not accept that the applicant was the subject of adverse attention to the authorities at the time he left Sri Lanka in September 2012.

20. Accordingly, on 4 October 2016, the delegate found that the applicant failed to meet the criteria for the grant of the Visa.

    THE AUTHORITY’S DECISION

21. On 10 October 2016, the Authority wrote to the applicant, explaining that the application for the Visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions, which were expressly referred to in the Authority’s decision.

22. The Authority identified the background to the Visa application and had regard to the material referred under s 473CB of the Act. The Authority identified new information and it found that, after taking into account the whole of the provisions of s 473DD of the Act, it did not satisfy the Authority that there were exceptional circumstances to justify considering the new information.

23. The Authority summarised the applicant’s claims. In paragraph 10 of its reasons, the Authority identified that the applicant’s claims of abduction in 2005 and mistreatment were unconvincing. The Authority referred to the applicant having stated that he was taken by a white van to an unknown location and tortured under suspicion of assistance to the LTTE, and that the applicant believed he was taken by CID officers. The Authority identified that, at the Visa interview, the applicant advised the delegate that, based on the language of his abductors, they were from the Sri Lankan Army (“SLA”). The applicant also claimed that he was blindfolded and taken to an unknown area in a forest.

24. The Authority referred to the applicant claiming that, for a period of two months, he was tied to a chair, severely beaten and given no food, and did not sleep. The Authority referred to the delegate’s assessment of the applicant’s claim of being abducted and mistreated in 2005 being exaggerated. In this context, the Authority found that this undermines the applicant’s credibility.

25. The Authority found it implausible that the applicant was detained by the Sri Lankan authorities and did not sleep or eat for two months, yet survived. In this context, the Authority also found it implausible that, within six months of being released, the applicant was able to depart for Saudi Arabia to work on a work visa, where he then remained until 2008. The Authority took into account that there is no reference to the applicant undergoing any medical treatment in relation to this claim of mistreatment by the CID. 

26. The Authority did accept it as plausible that the applicant was detained for a period of time in 2005 under suspicion of LTTE links. The Authority also accepted that it was plausible that the applicant was harmed during the period of detention. However, the Authority was not satisfied that the applicant experienced the level of harm that he claimed in the Visa interview. In that regard, the Authority took into account the applicant’s ability to depart without difficulty in 2006, which also indicates that the applicant was not a person of interest to the Sri Lankan authorities on account of any perceived LTTE links, or for any other reason.

27. The Authority referred to the applicant’s claim that, in September 2008, he was interrogated by CID officers at Colombo Airport for around two hours. The Authority accepted it as plausible that, at the height of the conflict and in circumstances where the applicant was returning from a significant amount of time abroad, he was questioned by CID officers about his activities overseas and his level of support for the LTTE. The Authority referred to the applicant’s evidence that he was permitted to leave the airport following his being questioned, and noted that the applicant claimed to have no further interactions with the Sri Lankan authorities until June 2012. The Authority was not satisfied that, following the applicant’s release from the airport in September 2008, the applicant was a person of adverse interest to the Sri Lankan authorities on account of any perceived LTTE links.

28. The Authority referred to the applicant’s claim in relation to being a person of adverse interest to the TMVP, and fount it to be unconvincing. The Authority referred to the applicant’s Visa statement, where the applicant alleged that, approximately three months after he returned from Saudi Arabia, he received a letter from the TMVP telling him to report. The applicant claimed that he was warned not to enter LTTE-controlled areas and should not get involved in Tamil activities, and should not support the Tamil National Alliance (“TNA”). 

29. The Authority referred to an untranslated letter from the TMVP, dated 27 January 2009. The Authority referred to the applicant having advised the delegate that he received the letter one week after his return from Saudi Arabia. The Authority noted that, later in the Visa interview, the applicant raised a new claim; that the TMVP had written him letters between 2005 and 2012.

30. The applicant further claimed that he feared harm from the TMVP because he can give evidence against its members in relation to war crimes that they had committed. The Authority found the applicant’s oral evidence in relation to his claimed interactions with the TMVP to be vague, lacking in coherence and to be inconsistent with his Visa statement and the documentary evidence submitted. It was in those circumstances that the Authority made a finding that it was not satisfied the applicant came to the adverse attention of the TMVP as claimed. 

31. The Authority found the applicant’s claim regarding a relative to be unconvincing. The Authority identified that, in the Visa statement, the applicant claimed that the relative was falsely accused by the Sri Lankan authorities of being a senior member of the LTTE in 2008.  However, in the interview, the applicant advised the delegate that his relative was, in fact, a high-ranking officer in the LTTE and that he was arrested and detained in a particular camp for nearly one year. The applicant also told the delegate that, after his release in 2009, the relative went to Qatar, where he remains. 

32. The Authority referred to a translated copy of a court transcript which does not indicate that the applicant’s relative was suspected of being a high-ranking or even a senior member of the LTTE. Rather, it stated that the applicant’s relative lived and worked with another person who was an LTTE member, and that investigations were being undertaken to establish whether the relative and another person provided information to the LTTE while they were living in a particular location. The document identified that the investigations were not complete, and it was for that reason that an application was made to the Court to have the relative detained. 

33. In contrast, the Authority referred to the applicant’s evidence at the Visa interview. The applicant stated that his relative was detained for nearly a year, which is also different from the information he provided at an earlier interview on 24 October 2012, being the entry interview where the applicant alleged that his relative was imprisoned for two years under suspicion of involvement in the LTTE.

34. The Authority also found that the applicant’s claim in relation to a particular relative being involved in a disagreement with a co-worker in around March 2012 contradicted the applicant’s claim that the relative had gone to Qatar following his release in 2009. The Authority made reference to the applicant’s belief that, because of the disagreement with the co-worker, the co-worker made false accusations against the applicant that resulted in him being arrested on 1 June 2012. The applicant claimed that he was detained for one day, from morning until night, and required to remove his clothes apart from his underwear and asked if he supported the LTTE.

35. The Authority referred to a “Receipt of Arrest, dated 1 June 2010 [sic]”, which stated that the applicant was arrested of the afternoon of 1 June 2012 in relation to an assault. The document also stated that the applicant was held at police headquarters, and that he was released following the payment of bail.

36. The Authority found the applicant’s claim, that he came to the adverse attention of authorities following his release from custody on 1 June 2012, to be unconvincing. The Authority referred to the applicant’s claims in his Visa statement that, following his release, unknown persons kept coming to his house in search of him and that he had received threatening phone calls. The applicant also alleged that the authorities came in search for him several time after he had left Sir Lanka.

37. In relation to this claim, the Authority found the applicant’s evidence at the Visa interview to be vague and at times evasive. The Authority referred to the applicant advising the delegate that, following his arrest, he was living with his wife in a rented house in a particular town, and that unknown people in a white van came looking for him. The applicant also advised the delegate that he received threatening phone calls while living at that house, and that after he came to Australia, people in white vans started looking for him at his wife’s home. 

38. The Authority referred to the applicant telling the delegate that unknown people came countless times while he was in Sri Lanka, though he was able to escape out the back of the house each time. The Authority referred to a system for him going out through the back exit happening twice, once in 2005 and once on 1 June 2012. The Authority referred to the delegate’s attempts and considerable patience to clarify with the applicant as to when the vans approached, and referred to the applicant’s response as being vague and lacking coherence. The Authority referred to the applicant’s oral evidence as to whether he was in Sri Lanka when unknown persons in white vans approached, and as to which house he was living in when this occurred, as being evidence that kept changing.

39. The Authority also identified that the applicant’s evidence in the Visa interview as to his employment circumstances following his arrest in June 2012 was inconsistent with the information he provided in his Visa application and at the entry interview. The Authority referred to the applicant advising the delegate that he continued to work for a month after being released from custody on 1 June 2012, whereas in the entry interview and the Visa application the applicant claimed that he began a new role in July 2012 as a hire driver and continued that role until September 2012. The Authority found the applicant’s evidence as to the events in 2012 to be vague and inconsistent, and found this undermines the applicant’s credibility. 

40. The Authority referred to the applicant’s evidence in the entry interview and in the Visa statement as to his relative being falsely accused of being involved in the LTTE. However, in the Visa interview, the applicant claimed that his relative was a high-ranking officer of the LTTE. The Authority also referred to the applicant’s inconsistent evidence as to the length of his relative’s imprisonment and when he departed for Qatar. The Authority concluded that the applicant was not recording a genuine personal experience.

41. The Authority accepted it was plausible that the applicant’s particular relative was detained for a period of time in 2008 under suspicion of LTTE links. The Authority identified that the applicant provided conflicting dates in his evidence concerning his relative’s release from prison, and that he has since departed for Qatar. The Authority found that the fact that the applicant’s relative had been able to depart Sri Lanka without difficulty indicates that he was not a person of interest to the Sri Lankan authorities when he departed the country. The Authority, after referring to the Court transcript, preferred the applicant’s evidence at the entry interview and his Visa statement; that his relative came to the adverse interest of the Sri Lankan authorities in 2008 on account of his LTTE links. The Authority did not accept that the applicant’s relative was a LTTE officer, or that he was imputed as such, or that he was a person of ongoing interest to the Sri Lankan authorities when he departed Sri Lanka between 2009 and 2012.

1. The Authority referred to the applicant’s claims that he was arrested on 1 June 2012 being consistent with the evidence he provided at the entry interview, and accepted that the applicant was arrested and released on the same day. However, the Authority had concerns in relation to the applicant’s claim that he was arrested under suspicion of having LTTE links, or in connection with a false accusation made against him. 

2. The Authority identified the documentation, which supported that the applicant was arrested in connection with an assault. The Authority referred to the applicant’s evidence about being arrested as a consequence of a disagreement involving his relative as contradicting his earlier claim about his brother going to Qatar in June 2009.

3. The Authority referred to the applicant’s vague oral evidence regarding unknown persons in white vans pursuing him, and found that was inconsistent with applicant’s evidence regarding his employment circumstances following his arrest. It was in these circumstances that the Authority was not satisfied that the applicant’s circumstances following his arrest on 1 June 2012 were as claimed. The Authority found that the applicant was arrested and released on 1 June 2012 in relation to an assault, and that he was released on bail that same day. 

4. In light of the credibility concerns, the Authority did not accept that, following the applicant’s release, he received threatening phone calls or was pursued by unknown persons in white vans. The Authority also rejected the applicant’s associated claim that, following his departure from Sri Lanka, the authorities came and searched for him several times.

5. The Authority referred to having accepted that the applicant was detained for up to two months in 2005 under suspicion of having LTTE links. The Authority also accepted that the applicant was harmed during his detention. The Authority referred to the applicant being able to depart from Sri Lanka in 2006 without difficulty, and that he was questioned by the authorities upon his return in September 2008. 

6. The Authority found that the applicant was not a person of adverse interest to the authorities. The Authority was not satisfied that the applicant faces real chance of serious harm due to his previous interaction with the authorities in 2005, 2006 or 2008, now and in the reasonably foreseeable future.

7. The Authority identified having rejected the claim that the applicant came to the adverse attention of the TMVP in 2008, or at any other time. The Authority was not satisfied that the applicant faces a real chance of serious harm due his previous interactions with TMVP now or in the reasonably foreseeable future. 

8. The Authority was not satisfied that the applicant’s relative was a person of ongoing interest to the Sri Lankan authorities when he departed Sri Lanka. The Authority was not satisfied that the applicant faces a real chance of serious harm due to his relative’s profile now or in the reasonably foreseeable future.

9. The Authority accepted that the applicant was arrested and released on bail on 1 June 2012, but rejected that the arrest was because of suspicions of the applicant having LTTE links, or a connection with a false accusation against him. The Authority also rejected the applicant’s claims in relation to having received threatening phone calls, or that he was pursued by unknown persons, or that the authorities came and searched for him after his departure. The Authority was not satisfied that the applicant faces a real chance of harm due to any imputed links or in relation to a false case lodged against him now or in the reasonably foreseeable future.

10. The Authority referred to country information. The Authority found that the applicant was not a person who faces a real chance of serious harm by virtue of his Tamil ethnicity or on account of any actual or imputed LTTE connections, including familial connections. The Authority was not satisfied that the applicant faces a chance of serious harm due to his Tamil ethnicity, his imputed LTTE profile or for any other reason upon his return to Sri Lanka, now or in the reasonably foreseeable future.

11. The Authority was not satisfied that the applicant faces a real chance of serious harm due to being a failed asylum seeker from Australia, or his scarring, now or in the reasonably foreseeable future if he returns to Sri Lanka. The Authority was not satisfied that the penalty process the applicant may face on return to Sri Lanka because of his illegal departure would constitute persecution for the purposes of the Act. The Authority did not accept that the applicant faced any chance of serious harm from the Sri Lankan authorities due to his illegal departure, travel to Australia or for any other reason.

12. Having consider the applicant’s claims individually and cumulatively, the Authority found that the applicant does not have a well-founded fear of persecution. The Authority found that the applicant did not meet the definition of refugee in s 5H(1) of the Act, and that the applicant did not meet the criteria in s 36(2)(a) of the Act.

13. The Authority turned to the issue of complementary protection and referred to the findings that had been made, and other country information. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there was a real risk that the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act. Consequently, the Authority affirmed the decision of the delegate under review. 

    BEFORE THE COURT

14. These proceedings were commenced on 5 May 2017.

15. In May 2021, orders were made fixing the matter for hearing, and transferring the matter to this Court’s docket.

    THE GROUNDS

16. The grounds in the amended application are as follows: 

    Ground 1

    The IAA committed jurisdictional error by presenting a finding which was irrational, illogical or so unreasonable that no reasonable decision maker could make it.

    PARTICULARS

    a.At [6], the applicant claimed that he was abducted, detained, beaten and threatened by persons who he believed to be officers of the CID;

    b.The abduction and subsequent events were based on the accusation that he was providing support for the LTTE;

    c.At [11] the IAA did not consider that the applicant suffered the level of harm that was alleged and found that the applicant had exaggerated this claim.

    d.However, at [11] the IAA accepts that the applicant was abducted in 2005 and further it was plausible that he was harmed.

    Ground 2

    Not pressed

    Ground 3

    Not pressed

    Ground 4

    The IAA failed to act reasonably because, without good reason, it did not invite the applicant to an interview in order to gauge his demeanour for itself before it decided to reject evidence/claims given by the applicant in the interview with the delegate and which the delegate had accepted.

    PARTICULARS

    a.The delegate accepted the applicant’s core claims with some reservations about exaggeration.

    b.The delegate accepted that the applicant was abducted sometime in 2005 by persons in a white van because of suspicion that he was supportive of the LTTE

    c.The delegate accepted that the applicant was abducted, detained, mistreated and then released after a period of time.

    d.The delegate accepted that the applicant’s brother was arrested by the Sri Lankan military sometime in 2008 on allegations that he was involved with the LTTE.

    e.The delegate accepted that the applicant was questioned at the airport in 2008 to ascertain whether he provided financial help to the LTTE.

    f.The delegate accepted that the applicant’s interactions with the TMVP were as claimed and the motivations of the TMVP were reasonable (meaning in the context and in the light of country information).

    g.The delegate accepted that the applicant was arrested on 1 June 2012.

    h.The delegate accepted that the applicant had a brother who was a former member of the LTTE.

    i.In the above context, the IAA found that it was implausible that the applicant was detained by the Sri Lankan authorities in 2005, did not sleep and eat for two months.

    j.The IAA found that the applicant’s evidence that he was a person of adverse interest to the TMVP to be unconvincing. It was not satisfied that the applicant came to the adverse interest of the TMVP as claimed.

    k.The IAA found that the applicant’s evidence in relation to his brother to be unconvincing.

    GROUND 1

17. In relation to Ground 1, Mr Hodges, solicitor for the applicant, referred to the Authority’s finding that it was implausible the applicant did not sleep or eat for two months and survived, but accepted that it was plausible the applicant was harmed during the detention. Mr Hodges also referred to the Authority’s finding that it accepted, as plausible, that the applicant was detained by the Sri Lankan authorities for up to two months in 2005.

18. It was submitted that it was illogical to find, over several paragraphs of the Authority’s decision, that it was implausible that the applicant was detained by the Sri Lankan authorities and did not sleep or eat for two months and survived, but then find that the applicant was harmed after a period of detention by the authorities. The applicant’s submissions in support of Ground 1 do not deal with the whole of the findings made by the Authority in the context of not accepting the extent of the harm and torture that the applicant claimed he underwent during his detention.

19. In that regard, the Authority took into account the applicant’s ability to travel to Saudi Arabia shortly after his release and to obtain employment. The extent of the torture alleged by the applicant did provide a logical and rational basis for the Authority to express concern as to the implausibility of the applicant’s claims concerning the extent of the torture. The Authority also took into account that there was no evidence that the applicant underwent any medical treatment following the claimed mistreatment.

20. In those circumstances, the adverse finding by the Authority as to the extent of the harm suffered by the applicant during the detention cannot be said to lack an evident and intelligible justification. The adverse finding by the Authority in relation to the extent of the harm claimed by the applicant in respect of his 2005 abduction was not irrational, illogical or legally unreasonable. 

21. No jurisdictional error as alleged in Ground 1 is made out.

    GROUND 4

22. In relation to Ground 4, Mr Hodges took the Court specifically to the High Court’s decision in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 (“ABT17”) at [15], and contended that the Authority’s reasoning was similar to that criticised by the Authority.

23. In his written submissions, Mr Hodges also referred to ABT17 at [25], contending that the Authority in this case had made the same error as identified in that passage. Mr Hodges referred to ABT17 at [29] and [30] as to the obligation of legal reasonableness to use the powers under s 473DC of the Act.

24. Mr Hodges also referred to ABT17 at [62] as to the advantages of the person who directly assesses the credibility of a witness and the passage in ABT17 at [63]. Mr Hodges submitted that the Authority should respect the attendant advantages of the delegate in the context of demeanour and the circumstances of legal unreasonableness, as identified in ATB17 at [64].

25. Mr Hodges submitted that it was not apparent that the Authority had listened to the audio recording of the Visa interview, and that the Authority had departed from the delegate’s findings in relation to the applicant’s relative being arrested and charged. Mr Hodges submitted that the Authority referred to the applicant’s claims as being unconvincing, and that this contrasted with the delegate’s finding in relation to the relative’s arrest and being satisfied as to the veracity of that claim.

26. Mr Hodges also referred to the applicant’s claimed interaction with the TMVP, where the delegate accepted the interaction, while the Authority rejected that claim in its entirety, and that the Authority had not gone on to deal with the risk to the applicant having rejected those claims. 

27. The Authority did accept it was plausible that the applicant’s relative was detained under suspicion of LTTE links, but made a finding that it was open that the relative was not a person of ongoing interest to the Sri Lankan authorities when he departed Sri Lanka. The Authority addressed the inconsistency in relation to the applicant’s claims concerning the relative at paragraphs 14 and 18 of its reasons, where it found that it was plausible that the applicant’s brother was detained for a period of time in 2008 under suspicion of LTTE links.

28. This is, in substance, similar to what was accepted by the Authority in relation to the veracity of this claim, being that the relative was arrested by the Sri Lankan military some time in 2008 on account of allegations he was involved with the LTTE. This finding was not a case where the Authority rejected a claim accepted by the delegate in relation to the applicant’s relative on the basis of demeanour. Like the delegate, the Authority accepted the applicant’s claims as to the arrest of the relative due to involvement with the LTTE.

29. It is correct that the delegate did accept as plausible that the TMVP was vetting Tamil returnees, which was the motive for allegedly summoning the applicant to their office in January 2009.  The Authority did not accept as convincing that the applicant was a person who came to the adverse attention of the TMVP. At paragraph 13 of its reasons, the Authority identified the difference in the information provided by the applicant at the Visa interview as to the timing of receipt of the letter, and also the applicant’s new claim that letters had been written between 2005 and 2012. The Authority also referred to the applicant’s claim to fear harm because of evidence he could give in relation to war crimes that they had committed. 

30. The Authority did not make an adverse finding based on demeanour, and referred to the applicant’s claims in this regard being inconsistent with his Visa statement and the documentary evidence submitted. The adverse finding that the applicant did not come to the adverse attention of the TMVP as claimed was logical, rational and open for the reasons given by the Authority.

31. The Authority was not required to notify the applicant that it was considering taking a different view, which was adverse to the referred applicant, of the material considered by the delegate - DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72]. See also ABT17 at [23].

32. The Court accepts the first respondent’s submission that it was not the applicant’s demeanour that was considered in the context of the Authority’s findings and rejecting the applicant’s claims in relation to being of interest to the TMVP. The Court also accepts the first respondent’s submission that the findings in relation to the applicant’s relative and suspected links with the LTTE were not based on demeanour.

33. The Court finds that it is clear that the Authority did listen to the Visa interview. The reasoning of the Authority expressly distinguishes between the Visa statement and the Visa interview. There is a reference in paragraph 17 of the Authority’s reasons to oral evidence, which is consistent with having listened to the Visa interview, as are the other references to the Visa interview in the Authority’s reasons. 

34. In these circumstances, the Authority cannot be said to have acted legally unreasonably in not exercising its powers under s 473DC of the Act. That is because this is not a case where the Authority departed from the delegate’s findings based on demeanour, and because the Authority provided an evident and intelligible justification in support of its adverse findings. 

35. No jurisdictional error as alleged in Ground 4 is made out.

36. Accordingly, the amended application is dismissed.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       24 September 2021