CRK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 267
•16 FEBRUARY 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CRK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 267
File number(s): ADG 201 of 2018 Judgment of: JUDGE HEFFERNAN Date of judgment: 16 February 2021 Catchwords: MIGRATION – protection visa – where IAA determined issue of credit differently to delegate of Minister – applicant not invited to comment – power to ‘get’ new information – whether failure of IAA to invite applicant to comment unreasonable in the circumstances – where IAA relied on audio of interview with delegate – information gap – jurisdictional error demonstrated – writs issued Legislation: Migration Act 1958 (Cth), ss 5(1)(a), pt 7AA, 473CC, 473DC & 473DD Cases cited: ABT17 v Minister for Immigration & Border Protection (2020) 383 ALR 407
ASB17 v Minister for Home Affairs (2019) 268 FCR 271
BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365
BJB16 v Minister for Immigration & Border Protection (2018) FCR 116
BVD17 v Minister for Immigration & Border Protection (2019) 93 ALJR 1091
DGZ16 v Minister for Immigration & Border Protection (2018) 258 FCR 551
DPI17 v Minister for Home Affairs (2019) 366 ALR 665
FOA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 815
Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210
Minister for Immigration v Singh (2014) 231 FCR 437
Number of paragraphs: 40 Date of hearing: 7 September 2020 Place: Adelaide Counsel for the Applicant: Mr Barnes Solicitor for the Applicant: Paula Stirling Counsel for the Respondents: Mr Retallick Solicitor for the Respondents: Australian Government Solicitors ORDERS
ADG 201 of 2018 BETWEEN: CRK18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HEFFERNAN
DATE OF ORDER:
16 FEBRUARY 2021
THE COURT ORDERS THAT:
1.That there be an order in the nature of a writ of certiorari setting aside the decision of the Immigration Assessment Authority dated 20 April 2018 affirming the decision of the delegate of the first respondent made on 12 July 2017 rejecting the applicant’s application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa.
2.That there be an order in the nature of a writ of mandamus that the Immigration Assessment Authority review according to law the decision of the delegate of the first respondent dated 12 July 2017 rejecting the applicant’s application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa.
3.The first respondent do pay the costs of the applicant, such costs to be taxed pursuant to Part 40 of the Federal Court Rules 2001 (Cth) in the absence of agreement.
REASONS FOR JUDGMENT
JUDGE HEFFERNAN:
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 20 April 2018. That decision affirmed an earlier decision of a delegate of the first respondent not to grant the applicant a Safe Haven Enterprise Visa (‘the visa’).
The applicant raises a single ground of review as follows:
The IAA’s decision to confirm the delegate’s rejection of the visa was affected by jurisdictional error in that the determination not to exercise the discretion to get new information from the applicant pursuant to s.473DC of the Migration Act 1958 (Cth), or in the alternative the failure to consider the exercise of such a discretion, was legally unreasonable.
Particulars
(a)One of the integers of the Applicant’s claim for protection was that he faced a risk of harm at the hands of the Sri Lankan authorities as a person imputed to be involved with the LTTE, arising from having been involved unwittingly in the transport of fuel to the LTTE.
(b)The Minister’s delegate accepted that his employment by the transport business in making deliveries to the LTTE had imputed his involvement with the LTTE: CB 178. This conclusion followed an interview during which questions were asked by the delegate on this topic and answers were given by the Applicant.
(c)In the course of its determination of the review, the IAA considered a request by the Applicant to be interviewed “to provide additional reasons why he disagrees with the decision [of the delegate]” but decided not to exercise the discretion for that purpose: CB 386.
(d)Contrary to the finding of the Minister, the IAA found that the Applicant’s claim to have transported fuel to the LTTE was false, and was “recently fabricated to support his claim for protection”: Decision, [25], CB 390.
(e)At no point did the IAA consider exercising its discretion under s. 473DC to invite the Applicant to give new information in writing or at an interview so as to provide an opportunity to respond to the IAA’s concerns about the credibility of this aspect of his claim.
(f)In the circumstances, it was legally unreasonable for the IAA not to consider exercising its discretion to get information from the Applicant concerning this aspect of his claim.
(g)The IAA’s error in not considering the exercise of its power was material and involved jurisdictional error.
The applicant is a Sri Lankan Tamil and a Catholic. He arrived in this country as an unauthorised maritime arrival in September 2012. Once the statutory bar was lifted the applicant applied for the visa in July 2016. He is a fast-track applicant.[1] He was interviewed by a delegate of the first respondent in June 2017. The application for the visa was refused by the delegate in July 2017. As is required, the matter was referred to the IAA. The applicant was at that time being assisted by the Refugee Advocacy Service of South Australia and provided a written submission to the IAA. The decision of the delegate was affirmed by the IAA.
[1] Migration Act 1958 (Cth) s 5(1)(a).
The claims of the applicant essentially revolve around his fear of harm due to his Tamil ethnicity and because of his imputed links to the Liberation Tigers of Tamil Eelam (‘LTTE’). In particular, his fear was based on the fact that he had been employed for a person who sold fuel to the LTTE in 2008 and 2009.
In his original statement of claims, the applicant identified a number of matters which he says caused him to depart from Sri Lanka. One of those claims was that in 2007 he worked for a company whose main business was the transportation of fish from fishing vessels to the marketplace in Colombo. He also claimed that he protested against the construction of a Buddhist temple on the island upon which he lived. The Sri Lankan police and the Sri Lankan Navy were both in favour of constructing the temple. Members of the Christian population on the island (such as himself) and of the Muslim population, lobbied against this. As a result, he was subjected to beatings and the holding up of the grant of his fishing permit. He also claims to fear harm as a failed asylum seeker returning to Sri Lanka.
When the applicant was interviewed by the delegate for his Protection Visa Interview (‘PVI’) he expanded his claims and provided further information which he says was the reason for his imputed association with the LTTE. It was in the process of doing this that he made the claims about making deliveries to the LTTE including fuel. He said that his employer was supplying fuel to the LTTE without his knowledge and that he was given directions to deliver fuel by boat but was unaware that was provided to the LTTE at a large profit.
The delegate made the following finding:
I accept that the applicant worked for a Singhalese (sic) employer in a fish transport business in Kalpitya Sri Lanka. I accept that his involvement in making deliveries to the LTTE has imputed his involvement with the LTTE.[2]
[2] Court Book (‘CB’) 178.
In considering the implications of that finding, the delegate noted country information which suggested that past membership or connection to the LTTE did not give a Sri Lankan Tamil a profile of interest to the authorities unless they had, or were perceived to have had, a significant role in the organisation or if they were, or were perceived to be, active in post-conflict Tamil separatism. The reasons of the delegate state as follows:
I note the applicant claims that by following his employer’s instructions he has been imputed LTTE involvement. However, I find the applicant’s profile not be of interest to Sri Lankan authorities for the reasons outlined below …
… Noting the applicant has not had any high level involvement in the LTTE and the fact that they do not claim to have been involved in any separatist activities, I find that they would not have a profile of interest with any Sri Lankan authorities. I have given the UK report significant weight as it is based on the evidence provided through a visit to Sri Lanka in 2016 by a United Kingdom delegation which sought a range of views from multiple stakeholders.[3]
[3] CB 180.
In other words, the delegate concluded that a person with a low profile such as the applicant would not be of any interest to the authorities should he return to Sri Lanka.
The IAA Decision
As I have noted above, the applicant provided a written submission to the IAA. That submission addressed some of the findings of the delegate with respect to his claimed imputed LTTE links. The submission noted that the delegate had accepted his claim to have taken part in deliveries to the LTTE.[4]
[4] CB 214.
The IAA had regard to those parts of the applicant’s written submissions which were responsive to the delegate’s decision.[5] It did not consider certain new claims and information which the applicant sought to provide about fishing permits and the plan to build a resort on his island and relocate the residents.[6] The IAA was not satisfied that exceptional circumstances existed which would justify considering that material. Similarly, it did not have regard to certain pre-existing country information which was not before the delegate, on the basis that there were no exceptional circumstances justifying it in doing so. The IAA was prepared to consider new information from the UN Special Rapporteur and the International Truth and Justice Project, finding that exceptional circumstances existed to do so.
[5] CB 384.
[6] CB 385.
The IAA accepted some aspects of the applicant’s claims.[7] Relevantly, for the purpose of this application, the IAA departed from the finding made by the delegate as to the applicant having transported fuel. It did not accept that he transported fuel to the LTTE on behalf of his former employer. It did not accept that his former employer had provided information about him to the Navy.[8] The IAA reasoned as follows:
I note the applicant did not raise the claim regarding fuel deliveries to the LTTE during arrival processing or in his written statement of claim. The delegate asked him why he had not mentioned this claim earlier, and the applicant indicated he was very frightened when he first arrived in Australia that information will be given to Sri Lankan authorities, but now he feel (sic) confident to tell the truth. I accept an asylum seeker may be reluctant to disclose an association with an organisation such as the LTTE in their initial encounter with a foreign government, however I am not satisfied such fears prevented the applicant from providing those details in his statement of claims prepared a number of years later. I find the applicant’s failure to mention the claim regarding interactions with the LTTE in his statement of claims is extremely significant. In that document he provided a detailed description of events in 1997, and some details about his work with ND Transport, issues regarding the Buddhist Temple, and trouble with the Navy, but fails to make any mention of any involvement with the LTTE, including delivering fuel to them. Taking into account the applicant’s escalating claims regarding the number of times he was beaten by Navy officers, and recent disclosure of supplying fuel to the LTTE, I am of the opinion the claim has been recently fabricated to support his claim for protection. I do not accept the applicant transported fuel to the LTTE.[9]
[7] CB 387 [16], 388 [18], 391 [21].
[8] CB 390 [26].
[9] CB 390 [25].
The IAA was not satisfied that the applicant had left Sri Lanka for the reasons he claimed, that the Navy continued to enquire as to his whereabouts, or that his wife had had to relocate as a result of persistent enquiries from the Navy. It found that he did not meet either the refugee or the complimentary protection criteria.
The Statutory Framework
Fast-track hearings are provided for in Part 7AA of the Migration Act 1958 (Cth) (‘the Act’). The Act provides for a limited form of merits review. In the ordinary course, the review is conducted on the basis of the information provided to the IAA by the Minister without new evidence being obtained either in documentary or oral form. The procedures providing for the IAA to ‘get’ and consider new information when conducting a fast-track review are set out in Subdivision C of Division 3 of Part 7AA of the Act.
The power is established by s 473DC which provides:
Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Before new information may be considered by the IAA, the test in s 473DD must be satisfied. The cumulative requirements are as follows:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
It is well-established that where the power conferred in s 473DC is exercised it must be done reasonably.[10] It will be noted from the above that the IAA is under no duty to “get, request or accept” new information.
SUBMISSIONS
[10] BVD17 v Minister for Immigration & Border Protection (2019) 93 ALJR 1091 [15].
Applicant’s submissions
The applicant accepts that the IAA member was aware of her power under s 473DC. That much is clear from the fact that she considered it in the context of the applicant’s request for an interview. It is submitted that the unreasonableness lies in the fact that there was no apparent consideration by the IAA of the exercise of the power to invite the applicant to respond, either in writing or by further interview, to the concerns that it had on the question of his involvement in delivering supplies to the LTTE. In that regard, the applicant points to the fact that the delegate made a positive finding with respect to the delivery of fuel by the applicant with the advantage of having been able to observe his demeanour and the manner in which he responded to questions. In particular, the applicant emphasises that the delegate was at pains to raise the applicant’s failure to have mentioned the fuel deliveries in his arrival interview.[11] It was not suggested to the applicant that the failure to mention it in his statement of claims suggested to the delegate that he was not truthful. The effect of this, it was submitted, was that the IAA review occurred without the applicant being aware of the need to address that point, which in turn deprived him of an opportunity to comment on or respond to the adverse finding made by the IAA on that matter.
[11] Transcript (‘TX’) of delegate’s Protection Visa Interview (PVI) with applicant 10, 15.
The applicant submits that fairness required the IAA to, at the very least, consider whether to exercise the power under s 473DC(3) to provide him with an opportunity to respond to the concerns which underpinned the finding that the applicant was not to be believed on a critical factual element of his claim. It was submitted that a reasonable decision-maker could not conduct the review fairly and properly without firstly considering the exercise of that power and secondly without exercising it. The failure to exercise the statutory power was legally unreasonable and amounted to a constructive failure to conduct the review required under s 473CC.
First Respondent’s submissions
The first respondent submitted that it was not unreasonable for the IAA to make the impugned factual finding without interviewing the applicant. In making that submission, the first respondent noted that the IAA relied on the following:
(1)Inconsistencies between the dates of employment provided in the applicant’s visa application, arrival interview, and his PVI.
(2)The failure to raise the fuel transporting claim in either his arrival interview or his written statement of claims which was submitted with his application.
(3)It also noted the applicant’s explanation of having been frightened on his arrival in Australia but found that such fear could not plausibly have accounted for the failure to mention it in his statement of claims many years later.
(4)Further, the IAA considered the failure to raise the fuel transporting claim in his written protection claims in the context of the very detailed description of other aspects of his claim in that document.
(5)It also considered that claim in the context of what it regarded as being his escalating claims with respect to the number of times he had been assaulted by Navy officers.
For those reasons the Minister submitted that the impugned finding was clearly open to the IAA for the reasons that it gave.
It was submitted as well-established that the IAA is entitled to reach its own conclusion on the same information considered by the delegate and thereby arrive at a different result. Further, the IAA is not required to put an applicant on notice that it is considering taking a different view to that of the delegate even where it makes adverse findings. There was accordingly no obligation on the IAA to seek new information from the applicant in the circumstances. The Minister submitted that the decision of the IAA to refuse the applicant’s request for an interview, was open to it and justified by the reasons it gave. It was not an unreasonable decision to have made. The Minister acknowledged that had the IAA been considering an entirely different dispositive issue, such as relocation, then a failure to invite the applicant to attend an interview might in such circumstances be legally unreasonable. This was not such a case.
Contrary to the submission of the applicant, the first respondent submits that the IAA did consider exercising the discretion pursuant to s 473DC.[12] The fact that the IAA expressly considered s 473DC in the context of the applicant’s request for an interview means that the court should not infer a failure to exercise the power in the more specific context of its rejection of the claim to having delivered fuel to the LTTE. It was submitted that this was particularly so given that the IAA was not required to give reasons for procedural decisions. Accordingly, a failure to refer to the consideration or exercise of the discretion to conduct an interview with the applicant for that particular purpose takes the contention of the applicant no further. The applicant has simply failed to establish either that the IAA had not considered exercising the power or that it exercised its discretion in a manner which was legally unreasonable.
[12] CB 386 [12].
CONSIDERATION
The fast-track review process is an attenuated form of merits review. Nonetheless, it is well-established that, as with any de novo merits review, it is open to the IAA to reach a different conclusion to that reached by the delegate of the Minister and that is not confined to circumstances in which new information is received.[13] This was succinctly stated by the Full Court in DGZ16 v Minister for Immigration and Border Protection:[14]
In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge … that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond …
… There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.[15]
[13] BJB16 v Minister for Immigration & Border Protection (2018) FCR 116 [71].
[14] (2018) 258 FCR 551.
[15] Ibid [72], [75]-[76].
In that matter the Full Court acknowledged[16] that there may be some circumstances where a failure to consider exercising the discretion in s 473DC would be legally unreasonable and referred to the decision in Minister for Immigration & Border Protection v CRY16[17] which was a matter in which the IAA affirmed the decision of the delegate but did so on a basis which had not been dealt with by the delegate.
[16] Ibid [70].
[17] [2017] FCAFC 210.
Turning to the argument of the applicant, it is clear that he bears the onus of establishing that the IAA failed to consider the exercise of the discretion[18] and if so, that it was an unreasonable failure. That is a difficult task in circumstances where, as submitted by the first respondent, the IAA did specifically deal with the discretion in its reasons. It is convenient to reproduce the relevant passage in its entirety:
The submission also contains a request for an interview with the applicant to provide additional reasons why he disagrees with the decision. Section 473DB(1) of the Act provides that subject to Part 7AA, the IAA must review a fast track reviewable decision without accepting or requesting new information and without interviewing the referred applicant. Section 473DC(2) further provides there is no obligation on the IAA to get, request or accept any new information including new information from an applicant in the form of an interview. The applicant was advised at the SHEV interview he may not have another chance to provide information to support his claim. I am satisfied the applicant has had an opportunity to present his claims, including his submission. I am not satisfied in the circumstances of this application that an interview is required. I am satisfied it is reasonable not to exercise the discretion in this case, and accordingly I have not invited the applicants (sic) to attend an interview.[19]
[18] ASB17 v Minister for Home Affairs (2019) 268 FCR 271.
[19] CB 386 [12].
The exercise of the discretion and the need to consider the reasonableness of not exercising it was considered in that context. The IAA was not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on it by s 473DC(1).[20] It has been noted that the nature of the statutory scheme in this regard has the effect of imposing practical limitations on any challenge to the exercise or non-exercise of a discretionary power.[21] As the first respondent has conceded, it is to be accepted that where the IAA does so, it is the reasons that it actually gave which are susceptible to scrutiny on reasonableness grounds and the intelligible justification for the decision must be found within those reasons.[22] In the above passage, the IAA took into consideration the limited nature of the review provided by the legislative scheme and that it had no duty to ‘get’ new information. It took into account the opportunities which had already been afforded to the applicant to state his claims and make submissions with respect to them, including the submissions put to it on his behalf. It was not unreasonable to consider the exercise of the discretion with respect to the request for an interview by balancing the legislative scheme against past opportunities he had been given to make his case. The conclusion that it was “not satisfied in the circumstances of this application that an interview is required” appears logically to be a reference to all of the procedural circumstances and relevant material which had at that time accumulated. As will be seen below, I am not satisfied, however, that it extends to the process of reasoning embarked on by the IAA with respect to those matters.
[20] BVD17 [16]; BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365.
[21] BCQ16 Ibid [50].
[22] Minister for Immigration v Singh (2014) 231 FCR 437 [47].
In his submissions, Mr Barnes sought to isolate the reasoning of the IAA with respect to the critical point in the reasoning of the reviewer at which the decision not to invite the applicant to comment on her proposed adverse finding must logically have been either made or not considered. On this analysis, as I understand the submission, the court is invited to put to one side the ‘initial’ exercise of the discretion not to accede to the applicant’s request for an interview referred to in the paragraph above and to focus on that critical point as a separate exercise of the discretion. To paraphrase Mr Barnes’ oral submissions, there must have been a point at which the IAA decided to depart from the delegate’s decision and that point was the time at which to exercise the discretion.
The applicant relied on DPI17 v Minister for Home Affairs[23] in answer to the first respondent’s reliance on DGZ16. In DPI17, the Full Court dealt with a matter in which the IAA had affirmed the decision of the delegate but, as in this case, found against the applicant on credibility issues largely because it found that there were significant inconsistencies with respect to a claimed event which was at the heart of his protection claims. The delegate had not found those inconsistencies to be significant, was impressed by the demeanour of the applicant and said so. As a result, the written submissions provided by the applicant to the IAA made no reference to the inconsistencies in his various versions with respect to the claimed event. On appeal, the first respondent conceded that the IAA had not considered the exercise of the s 473DC discretion to ‘get’ new information. The Court reminded itself that legal unreasonableness is fact dependent and concluded that there were no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC.[24] It agreed with the majority in DGZ16, that the starting point in a case such as this is not to look at it “through a natural justice lens” and concluded that the mere fact that there has been a failure to consider the exercise of the power in s 473DC did not of itself establish error, let alone jurisdictional error.[25] The Court considered at length paragraph [72] of the decision in DGZ16 to which I have referred above. It concluded that that passage had to be read in the context of the particular facts and circumstances of that case.[26] It was not a case in which the IAA had decided a point different to that of the delegate and the findings in paragraph [72] must be understood to have been in response to a submission made by the applicant that simply because the IAA had regard to the written submissions of the applicant and accepted new information contained in them, it was thereby required to invite him to respond once it formed specific reservations about his case. The Full Court found:
… It was in this context, and with particular reference to the circumstances of that case, that the Full Court stated at [76] that it was open to the IAA to disagree with the delegate’s evaluation of the material without providing the appellant with an opportunity to respond.
These statements by the Full Court should not be viewed as establishing a general principle that the IAA is never obliged to provide the appellant with an opportunity to respond if the IAA disagrees with the delegate’s evaluation of material.
It is significant that the Full Court in DGZ16 viewed the case there as being different from that in CRY16 (where the IAA affirmed the delegate’s decision to refuse the SHEV but on a different basis of reallocation which had not been addressed by the delegate). In DGZ16, their Honours expressly stated at [70] that in DGZ16 that “there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3)”. This statement serves to underline the central importance of paying close attention to the particular facts and circumstances in which the issue of legal unreasonableness is raised.[27]
[23] (2019) 366 ALR 665.
[24] Ibid [37].
[25] Ibid.
[26] Ibid [40]-[42].
[27] Ibid [40]-[42].
The Court found that performance of the duty to conduct a review under Part 7AA was conditioned on observing the obligations imposed on it under that Part and “by considering, in appropriate cases, whether or not to exercise the discretions which are conferred upon it.”[28]
[28] Ibid [43].
The applicant also referred me to the decision of White J in FOA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[29] In that matter his Honour found for the applicant on an almost identical ground to that in DPI17. The IAA had made a different finding to that of the delegate as to whether the applicant had in fact ever been kidnapped. The submission of the applicant was that in rejecting the evidence of the delegate on that matter and failing to invite him for an interview in which he might comment on the reviewer’s doubts on the topic, the IAA had acted unreasonably. This was particularly so because the delegate had made findings about the demeanour of the applicant which assisted him in overcoming reservations he had about the “far-fetched” nature of the claim. His Honour agreed. It was argued by the applicant in this matter that demeanour and the opportunity to have assessed his evidence in person was an inestimable advantage available to the delegate.
[29] [2020] FCA 815.
To the contrary, the first respondent sought to distinguish this case from DPI17 and FOA18 by submitting that this was not a case where demeanour had figured significantly or apparently at all in the reasoning of the delegate. Had demeanour been important it could be expected that the delegate would have mentioned it.
It is correct to observe that in the delegate’s decision record, there was no use by the delegate of the term ‘demeanour’ or other words which suggest that the way in which the applicant gave his evidence had an influence over the delegate’s acceptance of his claim to having delivered fuel for the LTTE. The delegate did not appear to have regarded that claim to have been fundamentally far-fetched. He simply accepted that part of the claim. Similarly, the transcript of the recording made of the interview does not mention demeanour or any doubts held on the part of the reviewer. I note that the interview appears to have been audio recorded and not videoed.
Since this matter was argued, the High Court has delivered its reasons in ABT17 v Minister for Immigration and Border Protection.[30] In that matter, the IAA departed from the assessment of the delegate with respect to a claim by the applicant to have been sexually tortured. It did so, having listened to an audio recording of the interview, on the basis of its own assessment of the credibility of the applicant’s account due a general lack of detail, some vagueness in the manner in which the applicant expressed himself, and his hesitancy in giving his account.[31] It should be noted that in ABT17 the delegate had apparently not made comments about the demeanour of the applicant and had regarded the claim as “plausible”. The Court held that the IAA will be acting unreasonably “if, without good reason it does not invite an applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given”.[32]
[30] (2020) 383 ALR 407.
[31] Ibid [15].
[32] Ibid [25].
The High Court considered the question of demeanour but in a slightly different context to that which arose in DPI17 and FOA18. As I have noted above, the delegate in ABT17 did not place any particular emphasis on demeanour. The IAA then made its own assessment of the credibility of the applicant. The High Court found that the manner in which the content of the interview with the delegate was presented to the IAA was significant and drew a distinction between matters in which an audio as opposed to a video recording had been made. It noted that either method of recording the interview was mandated by the relevant Code of Procedure but found as follows:
However, the potential for a record of an interview conducted in accordance with the Code of Procedure to take a variety of forms creates potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview — his or her demeanour.
An informational gap of that nature has potential to impact on the Authority’s assessment of the credibility of the account given by the referred applicant during the audio recorded interview and in turn has potential to impact on the Authority’s assessment of the referred applicant’s overall credibility. “Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker. “That has “long been recognised” and continues to be appreciated despite awareness on the part of sophisticated decision-makers that “an ounce of intrinsic merit or demerit” measured by reference to objectively established facts and the apparent logic of events “is worth pounds of demeanour.
The potential significance of demeanour is illustrated by the present case. Here, as will be seen, the Authority was troubled by a concern that the appellant’s evidence in his audio recorded interview with the delegate was generally lacking detail and at times vague and hesitant. An interview was the obvious means by which the Authority might seek to resolve these matters of concern, given that the Authority was evidently not convinced by the country information alone to uphold the delegate’s ultimate decision, however “plausible” the appellant’s account of his personal circumstances might be. At an interview the Authority could seek answers in relation to those aspects of the appellant’s evidence that troubled the Authority by raising questions which had not previously been raised with the appellant. The Authority could thus develop an informed impression of the credibility of the appellant based on his responses to such questions and an observation of his demeanour. The appellant’s responses and the demeanour of the appellant inextricably associated with them would be new information relevant to his personal circumstances.[33] (Citations omitted)
[33] Ibid [13]-[15].
On the above analysis, this present case is one which has an informational gap of the type identified by the High Court. An audio recording was made. It should also be noted that the High Court did not, in the above analysis, place any apparent emphasis on the seeming lack of reliance by the delegate on considerations of demeanour. Further, the present case could also be regarded as a matter in which the IAA was not convinced by country information alone to uphold the delegate’s ultimate decision irrespective of the applicant’s plausibility. The IAA made no reference to country information when rejecting the applicant’s account relating to the fuel deliveries. It is apparent that it was the content and circumstances of the account itself that gave rise to the finding. The IAA finding was made on the basis of the applicant’s failure to raise the fuel delivery claim at his entry interview or in his written statement of claims and the consequent inconsistencies in the version he gave to the delegate. Further, it was made on the basis that his explanation of being frightened as the reason for not having raised the matters earlier given the amount time which had elapsed since his arrival in Australia, was not objectively plausible.
In my view, it is significant that the High Court referred to “the potential significance of demeanour” when discussing the credibility findings made by the IAA which departed from the finding of plausibility made by the delegate. That potential significance will be an active consideration in any matter where the IAA departs from a credibility assessment made by the delegate in relation to a significant matter and not just a matter where the IAA specifically refers in its reasons to the demeanour of an applicant, having listened to an audio recording of the interview with the delegate. The need for a finding of exceptional circumstances to warrant conducting a further interview was addressed in ABT17. The Court continued:
There can be no doubt that the powers of the Authority to get and consider new information enable the Authority to bridge such an informational gap by inviting the referred applicant to a further interview to be conducted in person or by video link in order to assess and consider his or her demeanour for itself. The Authority’s own visual impression of the referred applicant’s appearance during such an interview would necessarily constitute new information within the power of the Authority to get because it would communicate knowledge of an evidentiary nature which would be open to be considered by the Authority to have the potential to bear on the Authority’s assessment of the referred applicant’s credibility and which was not before the Minister when the delegate made the referred decision. The new information so got by the Authority would then meet the preconditions to its consideration by the Authority on the basis that it was not and could not have been before the Minister when the delegate made the referred decision and on the basis of the Authority’s satisfaction that the existence of any informational gap is sufficiently aberrant within the scheme of de novo review for which Pt 7AA provides to make existence of the informational gap in the particular review alone enough to constitute “exceptional circumstances” justifying its consideration irrespective of how frequently such an informational gap might arise in practice.[34] (Citations omitted)
[34] Ibid [16].
I am satisfied that Mr Barne’s submission as to the failure to consider exercising the s 473DC discretion is correct. The IAA specifically considered the discretion in the context of receiving or not receiving the new information which it identified and to which I have referred at paragraph 11 above. It gave reasons for the decisions that it made in that regard. It also specifically considered the exercise of the discretion in the context of the applicant’s request for a further interview to explain why he disagreed with the delegate’s decision. It gave as its’ reason the ample opportunities it regarded him as having had to put his case. It should be noted that that request made by the applicant drew specific attention to the fact that his claims with respect to delivering fuel had been accepted by the delegate. I am not satisfied that either of those decisions with respect to the exercise of the discretion can be regarded as having encompassed a consideration of whether or not to exercise the discretion to interview the applicant in the context of the significant reservations it had about the fuel delivery claim and its’ ultimate decision to decide that question differently to the delegate. In my view, it did not have good reason not to invite the applicant for an interview to gauge his demeanour for itself before it decided to reject an account given by the applicant in an audio recorded interview which the delegate accepted. In my view, it can readily be inferred that the IAA did not consider inviting the applicant for an interview for that purpose. Whilst it was not required to give reasons for procedural decisions, it clearly chose to do so in this matter. It made no reference to having considered the discretion in that context and in the circumstances it can be inferred that had it done so, reference would have been made to it. The IAA was operating with an informational gap of the kind identified by the High Court. An assessment of the demeanour of the applicant at an interview would have afforded the IAA the opportunity to make its own assessment and would have filled the gap. The demeanour of the applicant could have been particularly important when considering whether or not to reject his explanation of being frightened as the reason for not having made the fuel delivery claim at an earlier time. That is particularly so given the IAA rejected the explanation of his subjective fears by reasoning objectively about how persons in his situation would ordinarily behave. The failure to consider exercising the discretion in s 473DC was, in the circumstances of this matter, legally unreasonable. I am satisfied that the applicant has demonstrated jurisdictional error by reason of a constructive failure on the part of the IAA to review the decision as required by Part 7AA.
The applicant relied on affidavit material to allow the court to assess the materiality of the error he asserted.[35] Materiality it is a question of fact. The first respondent did not object to my receiving the affidavit. I am satisfied that the applicant has established the materiality of the error and given my findings above I would have been so satisfied even without recourse to the explanation in the affidavit provided. I cannot say that the applicant might not have been deprived of a different outcome but for the failure of the IAA to consider exercising the discretion to interview him.
[35] Affidavit of applicant dated 25/8/2020.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Heffernan. Associate:
Dated: 16 February 2021
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