CHQ18 v Minister for Immigration
[2019] FCCA 3564
•10 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHQ18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3564 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority acted in a manner that was unreasonable – whether the Authority’s reasoning was inconsistent, illogical and or unreasonable – whether the Authority made a jurisdictional error – no error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473DD, 473FB |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | CHQ18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1270 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 9 December 2019 |
| Date of Last Submission: | 9 December 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 10 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Hodges, Hodges Legal |
| Counsel for the Respondents: | Mr Kaplan |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 1270 of 2018
| CHQ18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from Transcript)
Introduction
The applicant is a citizen of Sri Lanka. On 11 August 2016, the applicant lodged an application for a Safe Haven Enterprise visa. A delegate of the Minister for Immigration and Border Protection (“the delegate”) refused the visa application on 22 November 2017. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for a merits review. In a decision dated 9 April 2018, the Authority affirmed the delegate’s decision to refuse the visa application. The applicant now seeks judicial review in this Court. The matter for the Court to determine is whether or not the Authority’s decision is subject to jurisdictional error.
Immigration Assessment Authority Decision
Paragraphs 3 to 14 of its decision deal with various new information that was provided to the Authority. The Authority rejected the new information, including country information reports and online news articles, as it was not satisfied that the information could not have been given to the delegate before the decision was made, or that it was credible personal information which was not previously known. The Authority noted the provisions under s.473FB of the Migration Act 1958 (Cth) (“the Act”) were not complied with by the applicant’s representatives and decided not to accept that information.
At paragraphs 7 and 8 of its decision, a report from the Committee Against Torture (CAT) in Sri Lanka, published in 2016, was considered to be “new information” that could not have been provided to the delegate before the decision was made. Furthermore, the Authority was not satisfied that there were “exceptional circumstances” to justify considering the new information pursuant to s.473DD(a) of the Act.
At paragraph 12 of its decision, the Authority notes a submission from the representative that:
Despite the applicant not being a person of interest to authorities for LTTE links, he remains at risk of being sexually assaulted by the authorities.
The Authority noted that the applicant was not a person of interest to the authorities for Liberation Tigers of Tamil Eelam (“LTTE”) links, as it seemed to contradict previous submissions by the applicant or his representatives. The Authority concluded that it was satisfied the information that the applicant was not of interest to authorities, was “new information”.
The Authority was not satisfied, however, that there were “exceptional circumstances” to justify considering this new information, because the information appeared contradictory to previous evidence. The Authority was not satisfied the information could not have been provided to the Minister before the decision was made, or that it was credible personal information which was not previously known.
At paragraph 13 of the Authority’s decision, a further submission from the representative was put forward that if the applicant returned to Sri Lanka as part of a larger group of failed Tamil asylum seekers, there could be extensive delays as returnees cannot exit the airport until they have all been processed. The representative suggested that a group of returnees, particularly Tamil asylum seeker returnees, could be imputed with a political opinion that they did not hold due to one member of such a group being found to be a person of interest. The Authority was not satisfied this was “new information”. The Authority was not satisfied that this new information could not have been provided to the delegate before the delegate’s decision was made, or that it was credible personal information which was not previously known.
At paragraph 14 of its decision, the Authority considered the letter dated 16 December 2017, from a Mr S. Sivakumar. The Authority considered this new information. The letter stated:
I understood that during the period of detention, when he was under detention he has been suffered many tortures…
The Authority was not satisfied that the writer had personal knowledge of what happened to the applicant or his family. The Authority considered the letter had no probative value. The Authority was not satisfied that there were “exceptional circumstances” to justify considering this new information.
At paragraph 15 of its decision, the Authority set out the applicant’s claims for protection. They may be summarised as follows:
·The applicant is a Tamil male, born in Sri Lanka in 1993. The applicant is Hindu by religion.
·In January 2009, during the civil war, a bomb was dropped on the applicant’s house and his grandmother and a cousin were killed. His father was injured.
·Before the applicant was born, his father was arrested and tortured by Sri Lankan authorities.
·The applicant was never a member of the LTTE but he was often suspected of being an LTTE member and was questioned.
·The police took the applicant to a jungle area and molested him. They hit him with the back of a gun.
·In 2010, the applicant began to face persecution from Sri Lankan authorities who were targeting Tamils because of their ethnicity.
·The applicant claims he was tortured and on some occasions, sexually assaulted by Sri Lankan Army personnel.
·In 2010, the applicant was arrested by the Special Task Force (STF) several times and taken from his home to an Army camp, where he was interrogated about connections he had with the LTTE.
·On 8 June 2012, the applicant was detained while trying to leave Sri Lanka illegally. The applicant was taken to the fourth floor and tortured. The fourth floor is an area in the Criminal Investigation Department (“CID”) office. The applicant thinks it is in Colombo. The applicant was sent to jail for 20 days. The applicant was released after his mother came and signed for his bail. The applicant is not sure if he was formally charged.
·The applicant’s political profile is heightened because he has been arrested and charged with attempting to leave Sri Lanka illegally.
·The applicant has been advised that charges are still pending in Court in relation to him and the authorities have visited his home on numerous occasions asking about his whereabouts, pointing to the pending charges.
·The applicant left Sri Lanka, again illegally, and came to Australia.
·The applicant fears, if returned to Sri Lanka, he will be kidnapped, tortured, the torture will increase or he will be killed.
·The applicant fears persecution because he is Tamil, because he is perceived as an opponent of the Sri Lankan government and a supporter of the LTTE.
·One of the applicant’s cousins was kidnapped, murdered and his body found in the jungle in 2010.
·The applicant also provided a report from Foundation House about various counselling sessions he has undertaken. The applicant claims to have suffered from mental health concerns as a result of trauma.
At paragraph 19 of its decision, the Authority had regard to the report dated 10 April 2014, from Foundation House. As at the date of the report, the applicant had attended Foundation House nine times. The Authority noted the applicant had provided information to counsellors about his experiences in Sri Lanka, including being beaten, detained and sexually assaulted. The Authority noted the applicant’s claims in relation to these incidents were significantly greater before the counsellor than at his arrival interview.
At paragraph 21 of its decision, the Authority accepts that one of the applicant’s cousins was kidnapped and his body found in the jungle. The Authority noted there was no evidence to indicate that the applicant’s cousin was killed by Sri Lankan authorities. In any event, the death of the cousin took place approximately eight years ago and the Authority was not satisfied that the event is indicative of a real chance of harm to the applicant if he was returned.
At paragraph 22 of its decision, the Authority accepts that the applicant’s father was arrested on suspicion of being an LTTE supporter and was tortured. The Authority accepts the applicant’s father was released following detention, while other suspects were killed. The Authority concludes it was likely the applicant’s father was not found to be a supporter or member of the LTTE, because he was released. As the incident happened many years ago, the Authority was not satisfied it impacted on the applicant’s claims for protection.
At paragraph 24 of its decision, the Authority accepted that a bomb fell on the applicant’s house and his grandmother and a relative was killed and his father injured. The Authority does not accept the applicant’s claims that he and his mother were also injured. The Authority was not satisfied that there was a real chance, that if returned, Sri Lankan authorities would bomb the applicant’s home or otherwise attack his home, bearing in mind the civil war had ended in 2009.
At paragraph 26 of its decision, the Authority had concerns about the applicant’s later claims of many incidents of detention, beatings and torture. At the applicant’s arrival interview, he mentioned only one incident in 2012. In the applicant’s protection interview, he claimed he was beaten many times and on some occasions tortured sexually. While accepting that the applicant may have been reluctant to disclose sexual assaults, the Authority had concerns that he did not disclose many incidents of beating by Sri Lankan authorities.
At paragraph 27 of its decision, the Authority does not accept that the applicant was beaten many times by Sri Lankan authorities and was not satisfied he was taken or detained in 2012 on suspicion of being part of the LTTE.
At paragraph 32 of its decision, the Authority notes that if the applicant was ever taken to fourth floor, questioned and beaten, he would have given this evidence at his arrival interview, particularly as he claimed this incident occurred within six months of his arrival interview. The Authority does not accept this evidence that the applicant was taken to the fourth floor of the CID building and beaten up.
At paragraph 34 of its decision, the Authority accepts the applicant was caught and detained because he tried to depart Sri Lanka illegally in 2012, but does not accept he was tortured or beaten. No evidence was provided to the Authority that the applicant was formally charged with trying to leave Sri Lanka illegally in June 2012.
At paragraph 36 of its decision, the Authority does not accept, because the applicant attempted to leave Sri Lanka illegally on two occasions, being successful on the second occasion, that the authorities will be suspicious he is an LTTE supporter.
At paragraph 39 of its decision, the Authority does not accept the applicant will be on a stop or watch list if returned. The applicant was not involved with nor was he a member of the LTTE.
At paragraph 40 of its decision, the Authority does not accept that Sri Lankan authorities continue to go to the applicant’s family home and ask about his whereabouts.
Paragraph 42 of its decision, the Authority does not accept there is a real chance of the applicant being harmed on the basis of being Tamil, young or male, from the Northern Province, or having been detained because he tried to depart Sri Lanka illegally in June 2012. The Authority was not satisfied that the applicant has a political profile in Sri Lanka and is suspected of being an LTTE supporter. The Authority was therefore not satisfied the applicant faces a real chance of harm because of his political opinion or an imputed political opinion as a supporter of the LTTE.
Paragraphs 45 to 58 of the Authority’s decision deal with chances of harm resulting from the fact that the applicant has previously attempted to leave Sri Lanka illegally. The Authority considered the applicant’s circumstances and was not satisfied the applicant will be treated in a worse way because he had previously attempted to leave Sri Lanka illegally. The Authority had no information before it which indicated that a person who has made more than one attempt to depart Sri Lanka illegally, before successfully doing so, is treated any differently from anyone else. The Authority was not satisfied that the applicant had charges outstanding against him in relation to his first attempt to leave Sri Lanka illegally. Furthermore, upon return and being placed before the Courts, the Authority was satisfied that the applicant’s family had the capacity to pay the usual fine.
Accordingly, the Authority came to the conclusion that the applicant did not meet the requirements of being a refugee under s.36(2)(a) of the Act.
Paragraphs 61 to 66 of the Authority’s decision deal with complementary protection considerations. The Authority was not satisfied the applicant would suffer significant harm if he were returned to Sri Lanka and there were not any substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka from Australia, that there is a real risk he will suffer such harm.
Grounds of Appeal
Three grounds of appeal were initially relied upon. However, at the start of the hearing, ground 1 was abandoned. The remaining grounds are as follows:
Ground 2
The Authority overly relied upon the entry interview record to draw negative inferences, disregarding essential claims and integers of claims raised by the applicant, the Authority therefore acted in a manner that was unreasonable.
Particulars
Entry interview omission
a. The Authority had regard to the applicant’s counsellor’s report which stated the applicant had contact with Foundation House nine times [19].
b. The Authority acknowledged that the applicant provided information to his counsellor which included that he was detained, beaten and sexually assaulted [19].
c. The Authority raises concerns that the “incidents of harm and beatings by the Sri Lankan authorities were significantly greater before the counsellor than at the arrival interview” [19].
d. The Authority makes a finding that the applicant was never beaten many times by the Sri Lankan authorities because the applicant “did not mention the many incidents of beatings by the Sri Lankan Authorities” [26].
Entry interview omission 2
e. At [41] the Authority did not accept the claim raised by the applicant in his SHEV application because the applicant did not mention this claim at the arrival interview.
Ground 3
The Authority’s reasoning at [26] was inconsistent, illogical and so unreasonable.
Particulars
a. The Authority considered the counsellor’s report “which states that the applicant was shamed by the sexual assaults which was evidence by the secrecy he has maintained about this” [26].
b. The Authority accepted that “an applicant might be reluctant to reveal incidents of sexual assault at an interview” – the reference to “interview” relates to the Arrival interview [26].
c. When considering why the applicant did not mention the many incidents of beatings by the Sri Lankan authorities at the Arrival interview [26], the Authority focussed on the reason why the applicant did not mention the sexual assault (i.e. which was “reluctance and shame”)
d. “Reluctance and shame” could not have been attributed to the reason for the omission of the many incidents of beatings by Sri Lankan authorities at the Arrival interview because Reluctance and shame were specific reasons for the omission of the sexual assault claim.
e. The Authority’s inference that the many incidents of beatings by the Sri Lankan authorities did not occur is affected with jurisdictional error.
The Applicant’s Submissions
Ground 2 asserts that the Authority over relied upon the entry interview to draw negative inferences and disregarded essential claims and integers, such that the Authority’s decision was unreasonable.
Counsel, on behalf of the applicant, submitted that legal reasonableness is an essential element of lawful decision making (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”)). At paragraph [56] of the decision of MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 (“MZZJO”), the Full Court of the Federal Court noted that:
On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
The Authority raised concerns around the “incident of harm and beatings by the Sri Lankan authorities that were significantly greater before the counsellor than at the arrival interview”. At paragraph 26 of its decision, the Authority made a finding that the applicant was not beaten “many times” by Sri Lankan authorities because “the applicant did not mention the many incidents of beatings”.
When making this observation, Counsel for the applicant submitted that the Authority failed to consider the applicant’s claims that he was not afforded the opportunity to adequately and specifically describe his experience during his entry interview.
In the applicant’s statement of claims dated 20 July 2016, the applicant stated, in relation to his interview, that he was not aware that the interview would be used for the purposes of assessing his claims for protection. Further, the applicant claims, he was told to give short answers. This meant the applicant was not able to provide all the details of his information.
Counsel for the applicant submitted that the Authority’s sole reason for rejection of the applicant’s claims were that they were not advanced during his entry interview and as a result, the reliance on the entry interview, in the circumstances described above, is “plainly unreasonable, unjust, arbitrary, capricious or lacking in common sense”.
Ground 3 asserts that the Authority’s reasoning in paragraph 26 of its decision was inconsistent, illogical or unreasonable. The Authority considered the counsellor’s reports, which stated that the applicant was shamed by sexual assaults, which was evidenced by the secrecy he maintained about this.
The Authority focused on the reason why the applicant did not mention the sexual assaults being that he was reluctant and felt shame, but found the same reason could not be attributed to his lack of admission of many incidents of beatings by Sri Lankan authorities. Counsel for the applicant submitted that the Authority ignored the applicant’s statement in his statement of claims that he found the incidents of torture “difficult to discuss”. It was submitted that attributing a reluctance to discuss beatings, as compared to sexual assault, was legally unreasonable.
During the course of oral submissions, the Court was carefully taken through the evidence contained in the applicant’s arrival interview. It was put to the Court that at question 6B, the applicant was asked whether police or security impacted on his day-to-day life. The applicant said yes, saying that he lived at a place where the hospital was 100 metres away; he had to survive in bunkers. The applicant claims he was subjected to chemical weapons and cluster bombs by the Sri Lankan Army. It was put to the Court that this indicated a continuum of impact of events in the applicant’s late day-to-day life.
There was criticism by Counsel for the applicant, of the Authority’s decision at paragraphs 32 - 33, where the Authority found that the applicant had never been taken to the fourth floor and beaten. Counsel submitted that nowhere in the applicant’s arrival interview or the submissions made by his representative, did the applicant claim he had been taken to the fourth floor. Counsel submitted there was nothing to support the finding that the applicant, at any time, referred to the fourth floor.
The Authority had found that the applicant had fabricated this claim, that he had been taken to the fourth floor, beaten and tortured. These fabrications were for the purposes of supporting the applicant’s protection application. Counsel submitted that the applicant’s answers to questions at his arrival interview, his subsequent submissions contained in his application and supporting material, were not inconsistent, as found by the Authority. Rather that the applicant’s answers were short, given that he was told not to give too much detail and that the interview only took one hour. Counsel submitted that the applicant’s claims are, at all times, consistent. It is just that the applicant later provided more information when he had the opportunity to do so.
The First Respondent’s Submissions
In relation to the issue of whether or not the applicant made a reference to the fourth floor, Counsel on behalf of the first respondent, noted the Authority specifically referred to paragraph 33 of its decision that it “did not accept the applicant’s evidence in the protection visa interview (emphasis added) that he was taken to the fourth floor of the CID building, where he was beaten up”. Counsel submitted there was a clear reference from the words used in paragraph 33 that the applicant had made mention of this material in his protection visa interview.
Counsel for the first respondent noted that neither a transcript of and/or a recording of the applicant’s protection visa interview was before the Court. Counsel submitted that the Court was entitled to draw an inference, in relation to paragraph 33 of the Authority’s decision, that he had mentioned the fourth floor in his protection visa interview. The Court was taken to the decision of the Full Court of the Federal Court of Australia, NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at paragraph [21] in where support of the proposition that no inference in favour of the applicant could be made as to what the applicant did or did not say in circumstances where a transcript or a recording of the interview was not produced.
In relation to Ground 2, Counsel for the first respondent submitted that the applicant’s complaint is nothing more than the Authority placing excessive weight on inconsistencies between the evidence given in his entry interview and the evidence which was given during the visa application process. Counsel submitted that the degree of weight the Authority can place on evidence before it, is a matter for it and not for the Court on judicial review (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10).
Secondly, the applicant’s reliance on MZZJO is misplaced. In ERO17 v Minister for Immigration and Border Protection [2019] FCA 596, at paragraphs [21] – [25], Moshinsky J observed that MZZJO was:
[21] First, MZZJO was principally a case about how decision-makers should deal with the examination of an applicant’s religious beliefs, rather than the narrower issue of how decision-makers should deal with omissions in an entry interview.
[22] Secondly, the Full Court’s exhortation to decision-makers was to exercise caution in relation to omission of matters at an entry interview. This is not a prohibition on reliance on such an omission; it is guidance about the desirability of a cautious approach to fact-finding when relying upon an omission at an entry interview.
Further, the Full Court’s statements comprise obiter dicta and they do not bind this Court.
Thirdly, Counsel submitted that in the present case, the Authority did not merely rely upon the differences between the applicant’s evidence given during the entry interview and his visa application process. The Authority rejected the applicant’s claim that he had been arrested and detained in 2012, being suspected of being a member of the LTTE, relying on the fact that the war ended in 2009. The Authority also rejected the claim about being taken to the fourth floor and questioned, noting that this incident had taken place no less than six months prior to the applicant’s entry interview. The Authority formed a view that the applicant would have mentioned this matter, given the very short time that had elapsed between when he alleged it occurred and when he had his entry interview.
Fourthly, Counsel submitted that there was no evidence before the Court which indicated that the applicant was not afforded an opportunity to adequately and specifically describe his experience during his entry interview.
Fifthly, it was argued that the matters put forward are merely disagreements with the Authority’s conclusions and are not concerned with the weight in which a decision-maker should place on a particular piece of evidence.
Ground 3 argues that the Authority’s reasoning at paragraph 26 of its decision was inconsistent, illogical and unreasonable. In the Foundation House report, it was said that the applicant felt ashamed by the sexual assaults, as evidenced by the secrecy he maintained about this. Counsel submitted that the Authority accepted the applicant may have been reluctant to refer to the incidents of sexual assault in his interview, but the Authority was not satisfied that these feelings of shame explained why the applicant did not mention many incidents of being beaten by Sri Lankan authorities, or only mentioned being beaten once.
Counsel submitted that when the applicant said he found these events very difficult to discuss and disclosed some details, these only referred to the sexual assaults and did not refer to the beatings. In this circumstance, it was open to the Authority to find, while reluctant and shame may have prevented the applicant disclosing claims of sexual assault, this did not explain why he did not mention being detained or otherwise beaten in his entry interview, other than on one occasion.
Consideration
In considering a matter such as this, it is important to consider the general principles of law that apply. It is well established that a Tribunal, in this case the Authority, is not required to accept uncritically any and all claims made by the applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at page 451). Reasons also should not be read with too fine an eye attuned to error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Further, a disagreement on findings of the Authority does not of itself, disclose jurisdictional error. All this does is to invite merits review (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 (“Abebe”), at paragraphs [53] – [54]). Further, it is for the applicant to satisfy the decision-maker that the applicant is a refugee (see Abebe at paragraph [187]).
A wrong finding of fact is not an error of law (see Waterford v Commonwealth (1987) 163 CLR 54, page 77). Further, unsound reasoning is not an error of law (see R v District Court; Ex parte White (1966) 166 CLR 644, page 654). Finally, the test for legal unreasonableness is stringent and it will only arise in rare cases. It is invariably fact-dependent (see Minister for Immigration and Border Protection v SZVFW (2017) 248 FCR 1 (“SZVFW), at paragraph [38].
In relation to the assertion that there was no evidence before the Authority that the applicant claimed to have been taken to the fourth floor, I accept the submission of the first respondent that, based on the wording of paragraph 33 of the Authority’s decision, I am entitled to infer that the claim was made during the protection visa interview by the applicant.
I accept the first respondent’s submission that in the absence of either a transcript or recording of that protection interview, I am not entitled to make a finding favourable to the applicant and that there is a reasonable inference that the claim was made during the course of the applicant’s protection interview. If the applicant wishes to pursue such a claim, then the evidence should have been produced to the Court which indicated the Authority was wrong as to the conclusion it came to which are set out in paragraphs 32 and 33 of its decision.
Ground 2 asserts the Authority over-relied upon the entry interview record to draw negative inferences regarding essential claims or integers raised by the applicant and in so doing, acted unreasonably. The Authority acknowledged that the applicant may have not mentioned being sexually assaulted by the authorities, but it found he was inconsistent in respect of his claims of being beaten. The Authority rejected the claims at paragraph 41 of its decision, that he was tied up and beaten by Sinhalese people simply for being Tamil and perceived as being LTTE.
Whilst I accept that care needs to be exercised in relation to the evaluation of evidence when looking at material raised in an entry interview and then later at the visa interview, this is an evaluative exercised that is required to be undertaken by authorities in the finding of facts.
The Court was taken to DWA17 v the Minister for Immigration and Border Protection [2019] FCAFC 160, a judgment by McKerracher, Banks-Smith and Jackson JJ. The Court held, at paragraphs 32 to 33, that:
[32] We agree that decision‑makers would do well to apply the caution expressed by the Full Court in MZZJO at [56]. But it is just that – a caution. It is something which often, but not always, should be borne in mind in order to reach the correct decision.
The Court went on to say:
[33] We also accept that in some circumstances, a decision maker may rely on an interview record in such a way as to indicate a misunderstanding of the statutory task, or illogicality or irrationality, and thereby to fall into jurisdictional error. But jurisdictional error is notoriously dependent on the facts of the particular case and the proper construction of the statute. MZZJO does not stand for any proposition that, regardless of the circumstances, relying solely or primarily on the absence of claims from an entry interview is a jurisdictional error.
The Authority was prepared to accept that the applicant may have not mentioned incidents of sexual assault, but differentiated incidents of sexual assault with beatings. The Authority saw no reason why the applicant would not mention multiple beatings, in particular the one that he alleged had taken place no less than six months prior to the entry interview, at visa interview.
I reject the applicant’s assertion that the sole reason for the rejection of the claims of the application were that they were not advanced during the entry interview. I am satisfied there is no evidence before the Court that the applicant was denied an opportunity of properly putting his claims at the entry interview and that his failure to mention some matters, which he would later raise in his statement of claims, is a matter that the Authority could not rely upon when assessing the credibility of his claims. The weight to be given to particular claims is a matter for the Authority.
I can find nothing in the decision of the Authority that approaches the stringent test of unreasonableness set out by the Court in SZVFW. Rather, I am satisfied that the complaint of the applicant is more of an emphatic way of expressing disagreement with the conclusion of the Authority.
Ground 2 must fail as I am not satisfied that the decision of the Authority is tainted by jurisdictional error.
Ground 3 argues the Authority’s reasoning at paragraph 26 of its decision is inconsistent, illogical and unreasonable. I am satisfied the Authority’s reasoning in this paragraph is reasonable, logical and consistent. The Authority carefully considered the claims of sexual assault and was prepared to accept that they were good reasons why he may not have mentioned them. The Authority carefully considered the claims of sexual and other assaults. The Authority stated, however that:
I do not accept that this reluctance and shame explain why the applicant did not mention the many incidents of beatings by the Sri Lankan authorities.
The Authority went on, at paragraph 27 of its decision, to note that it was not satisfied the applicant was taken, in 2012, on suspicion of being part of the LTTE. The civil war had ended in 2009. There was nothing in the applicant’s profile which indicated any reason, other than for the fact that he was Tamil, why he would be perceived as being LTTE. The Authority also found the applicant was never taken to the fourth floor in the CID building.
As a whole, the rejection of the applicant’s claims at paragraph 26 of the Authority’s decision, is consistent with other findings by the Authority that the applicant was not tortured or beaten for a perceived LTTE profile or for any other reason. I can see nothing in the Authority’s reasoning at paragraph 26 which meets the standard for legal unreasonableness as described in Li or indeed SZVFW.
I accept the first respondent’s submissions that it was reasonably open to the Authority to find that, whilst a reluctance and shame may have prevented the applicant from disclosing claims of sexual abuse at his interview, they did not explain why he did not mention having been detained or otherwise assaulted, on other occasions during his entry interview.
Ground 3 discloses no jurisdictional error and must fail.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 12 February 2020
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