CDW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 233
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CDW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 233
File number: MLG 1033 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 1 April 2022 Catchwords: MIGRATION – Judicial review of decision of Immigration Assessment Authority – whether the Authority denied the applicant procedural fairness – whether the Authority applied the wrong legal test – whether there was an error of the type identified in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 5J, 36, 46A, 473CA, 473DA, 473DB, 473DC, 473DD, 476, 477, Part 7AA Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
Bala v Minister for Immigration and Border Protection [2019] FCA 600
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 29 March 2022 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J.K. Hoyle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1033 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CDW17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
1 APRIL 2022
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
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). On 5 May 2017 the Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
For the reasons outlined below, I find that the applicant has not established jurisdictional error in the Authority decision. I therefore dismiss the application to this Court.
BACKGROUND
The applicant is a citizen of Sri Lanka. He entered Australia at Cocos (Keeling) Islands in November 2012 without a visa. He is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On or about 21 April 2016[1] the applicant made an application for a protection visa after the Minister exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1), which had until that time prevented him from applying for a protection visa. The applicant claimed to fear harm on the basis of his Muslim religion and his involvement in an incident where he fought against armed thugs who threatened people in or around a mosque in his village in September 2011.
[1] There are various dates in the evidence and submissions before the Court as to when the protection visa application was lodged. The acknowledgement of the application refers to the applicant being made on 24 March 2016. The delegate’s decision and the Authority decision refer to the application being made on 21 April 2016. The Minister’s submissions to this Court refer to the application being received by the Department on 29 March 2016. Nothing turns on the precise date of application for the purposes of this judgment.
On 11 November 2016 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
On 9 January 2017 a delegate of the Minister made a decision not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 5 May 2017 the Authority affirmed the decision of the delegate not to grant the applicant a protection visa.
AUTHORITY DECISION
The Authority accepted, based on country information, that a clash occurred in Dikwella in September 2011 involving both Sinhalese and Muslims. However, the Authority did not accept that the applicant was personally involved in this incident as he had claimed. The Authority considered the applicant’s evidence regarding his role in the incident to be ‘vague, confusing and unconvincing’, and it identified a number of inconsistencies between his evidence at his arrival interview and his evidence in his protection visa interview. The Authority also rejected the applicant’s claim that he was threatened by the mob, gangs or thugs who were involved in the September 2011 clash, finding that the applicant’s claimed threat lacked detail, was vague and implausible.
After considering country information, including a Department of Foreign Affairs and Trade report, the Authority found that the applicant would not face any harm as a returnee, or as someone who sought asylum in Australia. The Authority further found that the anticipated treatment the applicant would face upon return to Sri Lanka for breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) would not amount to serious harm and, in any event, the law was one of general application, which would not be applied in a discriminatory manner. The Authority concluded that the applicant did not meet the definition of a refugee in s 5H(1) of the Migration Act and, therefore, did not meet the requirements of s 36(2)(a).
The Authority also found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that he would face significant harm. The complementary protection finding was largely based on the findings of fact made by the Authority in considering the applicant’s claims against the refugee criteria in s 36(2)(a) of the Migration Act.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings in this Court by way of an application filed on
19 May 2017. The application was filed within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act. The application raises the following two grounds:
1.The Immigration Assessment Authority did not afford me procedural fairness
2.The Immigration Assessment Authority applied the wrong legal test.
On 6 December 2017 a Registrar of this Court made an Order to progress this matter to hearing. Pursuant to the Order, the applicant was required to file any amended application, supplementary court book and written submissions 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions on 15 March 2022 in accordance with the Order.
The matter came before me for hearing on 29 March 2022. The applicant was self-represented, with the assistance of an interpreter in the Tamil and English languages. The Minister was represented by Mr Jonathan Hoyle of counsel.
APPLICANT’S SUBMISSIONS
In circumstances where the applicant is self-represented, I gave him an opportunity at the hearing to explain to the Court the grounds raised in his application. This is consistent with the approach in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9], where Colvin J confirmed that it is usually appropriate to give self-represented applicants in protection visa matters an opportunity to explain orally the matters that are said to give rise to their review grounds.
In his oral submissions to the Court, the applicant referred to the incident that happened in his village in September 2011. The applicant acknowledged that the Authority agreed that the incident happened, but found that he was not sure that he was affected because it was not satisfied that he was there, based on his oral statement. The applicant submitted that he was there at the time and was definitely part of it. He cannot go back to Sri Lanka, as he still has problems and there is still discrimination against Muslims in Sri Lanka. The applicant submitted that it would not be possible for him to go back to Sri Lanka now, and that he does not have anyone there. He is working here in Australia and paying tax.
In reply submissions the applicant said that it is not possible for him to provide evidence of the incident in Sri Lanka in September 2011 because he was part of the incident. There was various coverage in the media and everywhere saying that the applicant’s house and street were affected. The applicant said he was definitely there, but he cannot provide evidence or take a picture of this because he was in the middle of it.
MINISTER’S SUBMISSIONS
The Minister submitted that the applicant’s grounds of application are not particularised and should be dismissed for this reason alone. The Minister submitted that there were further difficulties with the applicant’s grounds. The Minister submitted that, in relation to Part 7AA of the Migration Act, it is well-established that common law procedural fairness rules do not apply: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 (BVD17) at [33]. The Minister further submitted that the threshold for risk of harm is the same for both the refugee criterion and the complementary protection criterion and that the Authority was permitted to use its findings in relation to the refugee criterion in determining the complementary protection criterion.
The Minister submitted that the Authority had assessed the totality of the material before it and weighed that material, based on the nature of the claims themselves, as made in the relevant documents and in the applicant’s interview before the delegate, as it was entitled to do so. The Minister also drew to the Court’s attention, as a model litigant, a potential issue arising as a result of the High Court’s judgment in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17), which I refer to later in this judgment.
CONSIDERATION
Need to establish jurisdictional error
In order to succeed before this court, the applicant must show that the Authority decision is affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in the High Court's decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Applicant's oral submissions
The matters raised by the applicant in his oral submissions do not allege any jurisdictional error in the Authority decision. Rather, the matters raised by the applicant in his oral submissions address the merits of his application for a protection visa and seek to persuade the Court that he should be granted a protection visa. The Court has no jurisdiction to decide whether or not the applicant meets the criteria for a protection visa and cannot engage in merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]. Accordingly, the matters raised by the applicant in his oral submissions do not give rise to jurisdictional error.
Grounds in the applicant's written application.
Failure to provide meaningful particulars.
The applicant has not provided any meaningful particulars to the grounds in his written application to enable the Minister or the Court to properly understand the errors that he is asserting in relation to his two grounds of review. The Minister has submitted that the application should be dismissed because of the failure to provide any meaningful particulars. Although it would be open to me to dismiss the applicant's grounds on the basis that they are not particularised, it is also open to me, in circumstances where the applicant is self-represented, to decline to dismiss the grounds solely on the basis that they are not particularised: see, for example, Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7]. I consider it appropriate to consider each of the applicant's grounds, notwithstanding that the applicant has not provided particulars.
Ground 1
By ground 1, the applicant asserts that the Authority denied him procedural fairness. The procedural fairness obligations owed by the Authority to an applicant are limited. Section 473DA(1) of the Migration Act provides that Division 3 of Part 7AA, together with two other sections that have no application in the present matter, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
The High Court has held that s 473DA(1) of the Migration Act leaves no room for the common law rules of procedural fairness: BVD17 at [33]. In my view, the Authority has not breached any of its procedural fairness obligations in Division 3 of Part 7AA of the Migration Act in this matter.
Section 473DB(1) of the Migration Act provides, as a general rule, that the Authority is to conduct the review on the papers without accepting or requesting new information and without interviewing the referred applicant. This general rule is subject to Part 7AA of the Migration Act.
Section 473DC of the Migration Act allows the Authority to get new information that was not before the Minister when the decision was made under s 65 where it considers that new information may be relevant to the review: s 473DC(1). The Authority also has the power to invite an applicant to give new information, including by attending an interview: s 473DC(3). The Authority does not have any duty to get, request or accept any new information: s 473DC(2). However, the Authority’s discretionary powers in conducting the review must be exercised reasonably: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21]; ABT17 at [3]. In the present case, the applicant did not provide any new information to the Authority and did not ask the Authority to take any new information into account.
The Authority had regard to updated country information and new country information that it obtained itself. The Authority was entitled to obtain this new information pursuant to s 473DC of the Migration Act. Before considering the new information, the Authority needed to be satisfied that the requirements of s 473DD(a) were met. The Authority was satisfied that the reports to which it had regard were published after the delegate's decision and there were exceptional circumstances to justify considering the new information.
None of the other procedural powers or obligations of the Authority in Division 3 of Part 7AA were exercised or needed to be exercised in the present matter.
Ground 1 is not established.
Ground 2
By ground 2, the applicant asserts that the Authority applied the wrong legal test.
In making its decision, the Authority needed to determine whether the applicant met the refugee criteria in s 36(2)(a) of the Migration Act or the complementary protection criteria in s 36(2)(aa) of the Migration Act. The Authority correctly summarised the relevant tests in relation to the refugee criteria at [6] and [7] of its reasons. The Authority also correctly summarised the relevant tests in relation to the complementary protection criteria at [31] and [32] of its reasons. There is nothing in the Authority’s reasons to indicate that these tests were not correctly applied.
In considering the refugee criteria, the Authority considered whether the applicant had a well-founded fear of persecution as it was required to do and the Authority's decision turns largely on its findings of fact that the applicant would not face harm as a result of the 2011 incident because he was not involved in it. In relation to the applicant's claims to face harm as a Muslim, the Authority considered country information about the level of threats to Muslims in Sri Lanka and found on the evidence before it that there was no real chance of the applicant being harmed as a Muslim now or in the reasonably foreseeable future.
The Authority also made findings in relation to the applicant’s claims that he would face harm as a returnee from the west and for breaching the Immigrant and Emigrants Act. The Authority carefully considered the treatment that the applicant would face as a result of breaching the Immigrants and Emigrants Act and found that it would not give rise to conduct amounting to serious harm. The Authority also found that the Immigrants and Emigrants Act is a law of general application which is not applied in a discriminatory manner. Accordingly, the application of the Immigrants and Emigrants Act did not involve systematic and discriminatory conduct, as required by s 5J(4)(c) of the Migration Act.
In relation to the complementary protection criteria, the Authority acknowledged that the real chance and real risk tests involve the same standard, which is consistent with the High Court authority in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19. The Authority relied on the findings that it made in relation to the refugee criteria as the basis for its finding in relation to complementary protection. It was open to the Authority to do this. The Authority also considered, when assessing whether the applicant met the complementary protection criteria, the treatment that the applicant would likely face at the airport when he returns to Sri Lanka and found that this treatment would not meet the definition of significant harm in s 36(2A) of the Migration Act.
The Authority appropriately considered and applied the relevant law in reaching its decision. Ground 2 is not established.
ISSUE RAISED BY THE MINISTER BASED ON ABT17
When conducting a review, the Authority is required to exercise its powers conferred under the Migration Act subject to the implied condition of reasonableness: ABT17 at [3]. In ABT17, the High Court found that, in some cases, compliance with the implied condition of reasonableness can require the Authority to exercise its powers to get and consider new information by inviting a referred applicant to attend an interview in order to assess and consider his or her demeanour for itself.
More specifically, the High Court found in ABT17 that:
(a)An informational gap can arise where an applicant attends an interview with a delegate which has been conducted in person and where that interview has been audio recorded but not video recorded. In such cases, the Authority will not have access to the visual impression of how the referred applicant appeared during the interview, in other words, his or her demeanour: ABT17 at [13]. This type of informational gap has the potential to impact on the Authority’s assessment of the credibility of the account given by the referred applicant during the audio recorded interview: ABT17 at [14]. Where such an informational gap exists, the Authority has the power to get and consider new information to bridge that gap: ABT17 at [16]. This could be done by, for example, inviting the applicant to an interview to allow the Authority to assess the applicant’s demeanour for itself.
(b)Where credibility is relevant to the determination of whether a referred applicant meets the criteria for a protection visa and to the extent that the applicant's demeanour in an interview might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility, taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the delegate’s reasons. Taking into account any such description or impression of the referred applicant's appearance, it would be ordinarily open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority’s assessment of credibility to coincide with the delegate’s assessment of credibility: ABT17 at [23].
(c)The Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate: ABT17 at [24]. However, the Authority will act unreasonably if, without good reason, it does not invite the referred applicant to an interview to gauge his or her demeanour for itself before deciding to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted wholly or substantially on the basis of its own assessment of the manner in which the account was given: ABT17 at [25].
In accordance with his obligations as a model litigant, the Minister brought ABT17 to the Court's attention and made submissions as to whether or not the Authority in the present case may have made an error of the type identified in ABT17. The issue arises in the present case as a result of the manner in which the delegate and the Authority have considered the applicant’s claim to be involved in the incident that took place in his village in September 2011. The delegate’s findings on this issue are set out at page 3 of its reasons, where she said (emphasis added):
The applicant claims that he got caught up in an altercation between local Sinhalese Buddhists and Muslims in his home area and, as a result, he was forced to move away from his home village and flee Sri Lanka. The applicant did not mention this incident in his Entry Interview and this was put to him at his SHEV interview. He stated that he was very tense after he arrived and fearful to tell his story. He stated that he realised later that he had made a mistake by not telling his story at that initial Entry interview. I am willing to give the applicant the benefit of the doubt regarding this initial admission. The applicant was not very specific regarding his involvement in the altercation between the two groups. There was an incident recorded in the Sri Lankan media regarding a riot between local Muslims and Sinhalese arising from a game of cricket. I accept that this incident occurred, but I am unable to ascertain the actual involvement of this applicant. It would be easy to claim involvement as it would have been a well-known incident that occurred in his home area. The applicant claims that although he did not play in the cricket match that may have sparked the subsequent riot, he was drawn to it as it was happening close to his fruit shop. I am therefore willing to accept that the applicant may have been involved in the altercation, but I am unable to ascertain the extent of his involvement. He claims that he is considered a leader of the Muslims that were involved but also claims to have become involved after it had begun.
The applicant is also now claiming that he will come to the extra attention because of this incident, as those involved with the incident believe that he hit a Sinhalese boy in the head with a chain. This was not mentioned prior to the SHEV interview and further leads me to conclude that the credibility of this claim is doubtful.
When considering this issue again later in her reasons and making findings as to whether the applicant met the refugee criteria, the delegate accepted that the incident happened and said that the applicant ‘may very well have been involved in this clash but I am unable to accept that this would be causing him issues now or in the future’.
The Authority in its reasons approached the issue differently to the delegate. The Authority, like the delegate, accepted that the incident in September 2011 happened. However, unlike the delegate, the Authority was not prepared to accept that the applicant had been involved personally in the incident. The Authority found that the applicant’s evidence was ‘vague, confusing and unconvincing’. The Authority’s reasons for this were as follows:
(a)It did not accept that the applicant would not have mentioned such an important incident that undermined his reasons for leaving Sri Lanka in his arrival (or entry) interview.
(b)The applicant provided different versions of what happened to him during the incident. He claimed in his protection visa application that he heard a commotion at the mosque near his fruit store and he and his friend went to investigate and joined in a fight between villagers and a gang of armed thugs. He said that they informed the local police who took statements. However, at his protection visa interview, he said that he was in the front line, and was arrested and held by police for five to six days, and then said he was not arrested, and then said that he would be arrested if he returned to Sri Lanka.
(c)He was unclear about who he feared harm from – the police, or persons in the Sinhalese community, or armed thugs.
(d)The applicant’s suggestion that a Sinhalese boy was injured when a chain was swung, it was implied that it was the applicant who swung the chain and as a result the police were looking for him was far-fetched and improbable.
(e)There is no evidence that the applicant would have attracted the attention of the mob or the gang of thugs who were involved in the incident in 2011 that would have caused members of that mob or gang to search for him from village to village, as he had claimed.
(f)Viewed together, there was no credible evidence to suggest that the applicant was personally involved in the incident.
The Minister submitted that the Authority’s approach in this matter does not give rise to jurisdictional error of the type identified in ABT17.
In his written submissions, the Minister submitted:
Although the IAA did make findings about the applicant’s credibility, those findings were based on matters that led the IAA to conclude that the applicant’s claims were “vague, confusing and unconvincing”. Those were not matters that led to any information gap of the sort that arose in ABT17 and the usual position applied; it was open to the IAA to form its own view of credibility: ABT17 at 452, [23]-[24].
The first respondent notes that in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRK18 [2021] FCA 1070 (CRK18), Kerr J had occasion to consider the principles in ABT17, in particular the observations of the High Court at [23] of the judgment of the plurality (Kiefel CJ, Bell, Gageler and Keane JJ). At [23], the plurality noted that it would be open to the IAA to take into account second-hand description or impression as might be conveyed expressly or by implication in the statement forming part of the review material. In that regard, one circumstance that Kerr J identified was a situation (as in CRK18) where the delegate had pressed an enquiry entitling it to reach a finding of recent invention; that would entitle the IAA to reach a similar finding without the IAA being at any disadvantage.
The critical point is that careful attention needs to be paid to what the delegate decided and how, by reference to the review material. Here, in respect of the incident central to the applicant’s claims the delegate simply stated that she was willing to give the applicant the benefit of the doubt about his claim (in effect, to assume the claim was correct): at CB 92. This was not a finding about the applicant’s credibility but rather a decision by the delegate to proceed on the basis that the claim was as stated by the applicant. In those circumstances, the relevant observation by the IAA about the applicant failing to mention the incident (at [14], CB 121) was one available to the IAA without the IAA suffering any disadvantage by comparison with the delegate.
In his oral submissions, Mr Hoyle submitted that there were two reasons why the Authority’s decision in the present matter is unaffected by any error of the type identified in ABT17:
(a)There was no positive credibility finding by the delegate. Rather it was a neutral finding. By giving the applicant the benefit of the doubt, the delegate simply decided to accept for the purposes of making the decision only that the applicant was present at the incident and that his explanation for why he did not mention it earlier should be accepted. It was not a finding that the applicant should be believed.
(b)The matters on which the Authority relied in its reasons at [14]-[17] (summarised at [39] above) were matters arising from the material that was present in the statements made by the applicant, and no information disadvantage arose in that regard. The Authority was in as good a position to assess the matter as the delegate.
The Minister relies on [23] of ABT17 where the High Court said:
To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate’s findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant’s appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant’s credibility without any need for the Authority’s assessment of credibility to coincide with the delegate’s assessment of credibility.
The applicant did not make any submissions addressing ABT17 and the issues raised by the Minister as a model litigant.
I find that the Authority has not erred in the manner identified in ABT17.
I agree with the Minister’s submission that the delegate did not make a positive credibility finding in relation to the applicant’s claim to have been involved in the September 2011 incident. The delegate clearly had some concerns with the applicant’s credibility. These concerns were recorded in the delegate’s statement of reasons where the delegate used expressions such as:
(a)‘[T]he applicant was not very specific regarding his involvement in the altercation’;
(b)‘[I] am unable to ascertain the actual involvement of this applicant’;
(c)‘It would be easy to claim involvement as it would have been a well-known incident that occurred in his home area’;
(d)‘[I] am unable to ascertain the extent of his involvement’; and
(e)In relation to the suggestion that the applicant was believed to have hit a boy in the head with a chain, ‘[t]his was not mentioned prior to the SHEV interview and further leads me to conclude that the credibility of the claim is doubtful’.
Notwithstanding these concerns, the delegate was prepared to proceed on the basis that the applicant had been involved in the incident in September 2011. Essentially, the delegate gave the applicant the benefit of the doubt, and did not base her decision on an unqualified acceptance of the applicant’s credibility or an unqualified acceptance of his account of his involvement in the September 2011 incident.
The present case is distinguishable from ABT17 because the delegate here did not expressly or impliedly make a positive finding about the applicant’s credibility. The main point of departure between the delegate’s reasons and those of the Authority is that the delegate was prepared to give the applicant the benefit of the doubt despite is credibility concerns and the Authority was not.
In these circumstances, it was open to the Authority to make the credibility findings that it made based on all the evidence before it, including the delegate’s concerns about the applicant’s credibility, without first inviting the applicant to an interview to assess the applicant’s demeanour. While there was an informational gap, in the sense that the Authority was not able to visually assess the applicant’s demeanour, that informational gap was not significant in the present case. There is no express reliance on demeanour in the delegate’s decision, and there is nothing in the delegate’s decision, such as an unqualified acceptance of the applicant’s claim, that implies that the delegate relied on any positive assessment of the applicant’s demeanour.
I find that in the present case the Authority has not acted unreasonably in failing to invite the applicant to attend an interview to assess his demeanour before rejecting his claim to have been involved in the 2011 incident in Sri Lanka.
CONCLUSION
I have found that there is no jurisdictional error in the Authority decision. Accordingly, the application to this Court is dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 1 April 2022
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