DBK17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1184
•13 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DBK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1184
File number: MLG 1470 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 13 December 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority acted unreasonably by failing to exercise its discretion under s 473DC of the Migration Act 1958 (Cth) or its general powers in the conduct of the review to seek new information or new submissions from applicant where submissions provided on behalf of applicant contained some information inconsistent with his claims – whether Authority acted unreasonably by failing to invite applicant to attend an interview before making adverse credibility findings – jurisdictional error established – writs issued Legislation: Migration Act 1958 (Cth) ss 5AA, 36, 473CA, 473DC, 473DD, 476. Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 594; [2020] FCAFC 189
FJH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 174
Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550; [2020] HCA 46
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: 91 Date of hearing: 17 November 2023 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Dr A McBeth Solicitor for the Applicant: Wimal & Associates Counsel for the First Respondent: Mr A Yuile Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1470 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DBK17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
13 DECEMBER 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 23 June 2017.
2.A writ of mandamus issue, directed to the second respondent, requiring the second respondent to reconsider according to law the matter referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
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
The applicant is a Sri Lankan Tamil who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision on 23 June 2017. The applicant seeks judicial review of the Authority decision pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The grounds relied on by the applicant assert that the Authority decision is vitiated by jurisdictional error on the basis that:
(a)the Authority unreasonably failed to exercise, or consider exercising, its discretion in s 473DC of the Migration Act, or its general powers in the conduct of the review, to get information from the applicant or his representative, in circumstances where the applicant’s representative provided submissions to the Authority that did not refer to the claims made by the applicant and contained claims that the Authority strongly suspected related to a different person; and
(b)the Authority acted unreasonably in departing from a finding made by the delegate in relation to the applicant’s credibility without first exercising its discretion in s 473DC of the Migration Act to invite the applicant to attend an interview.
For the reasons explained below, I have found that the first of the applicant’s grounds establishes jurisdictional error in the Authority decision. I therefore issue writs of certiorari and mandamus to quash the Authority decision and require the Authority to reconsider according to law the matter referred to it for review pursuant to s 473CA of the Migration Act.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant arrived in Australia by sea in November 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
The applicant applied for a protection visa on 10 March 2016. The applicant provided a statutory declaration with his visa application in which he claimed to fear harm in Sri Lanka, including on the basis of his Tamil ethnicity, his real or imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and as a failed asylum seeker.
On 22 August 2016 the applicant attended an interview with an officer of the Department to discuss his claims for protection.
On 28 October 2016 a delegate of the Minister made a decision refusing to grant the applicant a protection visa. The matter was then referred to the Authority for review pursuant to s 473CA of the Migration Act.
The applicant was represented by a registered migration agent both before the delegate and the Authority. The migration agent who assisted the applicant was the same person whose actions were considered by the High Court in Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550; [2020] HCA 46 (DUA16).
On or about 1 November 2016 the applicant, via his representative, provided written submissions to the Authority. These submissions are considered in greater detail in the context of ground 1 below.
The Authority affirmed the delegate’s decision on 23 June 2017. Relevant parts of the Authority decision are discussed in the consideration of the grounds raised by the applicant.
JUDICIAL REVIEW APPLICATION
The applicant relies on a further amended application filed on 31 October 2023, which raises the following two grounds:
1.The IAA acted unreasonably in the exercise of its discretion, or alternatively, constructively failed to exercise its jurisdiction, in failing to exercise or failing to consider whether to exercise its discretion under s473DC, or its general powers in the conduct of the review, to get information from the applicant or his representative.
Particulars
a)The applicant’s representative provided the IAA with a submission in support of the review in accordance with the IAA’s Practice Direction made under s473FB.
b)The submissions from the applicant’s representative did not refer to the claims of the applicant, but to the claims of some other person.
c)The IAA noticed that the submissions did not relate to the applicant, and commented, “I strongly suspect these claims relate to another person.”
d)The same IAA reviewer had previously received and considered substantially the same submissions and dealt with those submissions in identical terms.
e)The IAA treated the submissions that plainly related to a different applicant as raising new claims, which the IAA then refused to consider on the ground that the “new claims” did not satisfy the requirements in s473DD for the consideration of new material, while purporting to consider generic information contained in the submissions.
f)The consequence of the error in the submissions was that the applicant was deprived of the limited opportunity under part 7AA to put material before the IAA.
g)The IAA did not exercise and/or did not consider exercising its discretion under s473DC to get information from the applicant or his representative in circumstances where doing so would have cured the practical injustice to the applicant.
2.The IAA acted unreasonably in departing from a finding made by the delegate as to the applicant’s credibility without first exercising its power under s 473DC of the Act to invite the applicant to an interview.
Particulars
a)The delegate identified certain aspects of the applicant’s claims they found to have been exaggerated or embellished.
b)The delegate otherwise found that the applicant’s claims were credible and consistent with country information.
c)The delegate’s findings were based at least in part in the applicant’s demeanour and physical presentation in the interview with the delegate.
d)The IAA departed from the delegate’s credibility findings by rejecting the applicant’s claims that he had received military training with the LTTE and that he had not been detained.
e)The failure of the IAA to invite the applicant to an interview so it could assess the applicant’s demeanour and physical presentation for itself before departing from the delegate’s findings was unreasonable.
The evidence before the Court comprises a court book filed on behalf of the Minister on 1 March 2018, and three affidavits of Mylvaganam Wimaleswaran filed on behalf of the applicant on 13 October 2018, 31 October 2023 and 14 November 2023 respectively.
SECTION 473DC OF THE MIGRATION ACT
Both of the grounds raised by the applicant assert that the Authority acted unreasonably in the exercise or non-exercise of its discretion in s 473DC of the Migration Act. Section 473DC of the Migration Act provides:
(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.
The Authority is required to act reasonably in the exercise, or non-exercise, of its discretion to get new information conferred by s 473DC: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3].
GROUND 1
By ground 1, the applicant asserts that the Authority acted unreasonably in failing to exercise, or consider exercising, its discretion in s 473DC of the Migration Act, or its general powers in the conduct of the review, to get information from the applicant or his representative.
The ground arises in a context in which the applicant’s representative provided submissions to the Authority which included new claims that did not relate to the applicant. The applicant’s representative was the same representative whose actions were considered in DUA16. The High Court described in that case at [1] that:
… the agent’s conduct was fraudulent because it consisted of her concealing from her clients that she intended to use a pro forma submission with the belief that if she disclosed that to her clients they would not have been prepared to pay for her professional services. The agent acted fraudulently in up to 40 cases…
The applicant has identified the present case as one of the 40 cases in which the representative fraudulently provided the pro forma submissions.
The High Court’s judgment in DUA16
The starting point for the consideration of ground 1 is the High Court’s judgment in DUA16, to the extent that the High Court considered whether the Authority had acted unreasonably in the conduct of the review. The High Court considered the cases of two protection visa applicants: DUA16 and CHK16.
The High Court described that in CHK16’s case, the agent, acting fraudulently, provided submissions to the Authority where the entirety of the personal circumstances concerned the wrong person. The Authority noticed that the submissions related to a person other than the applicant, but did not seek to obtain correct submissions or new submissions about CHK16. The Authority had regard to the submissions concerning generic information and information about legal issues but disregarded the information concerning the personal circumstances of the wrong person: DUA16 at [2]. The submission provided in CHK16’s case contained none of CHK16’s personal information: DUA16 at [5].
The High Court described that in DUA16’s case, the agent, acting fraudulently, provided submissions to the Authority that contained information relevant to DUA16’s application and some information relating to a different applicant. The Authority concluded that the information relating to a different applicant had been included by mistake, found in any event that the requirements of s 473DD of the Migration Act were not met in relation to that information and disregarded the information about another person: DUA16 at [3], [13]. The submission in relation to DUA16 involved some amendments to the template to include some of his personal information: DUA16 at [5].
The High Court found that the approach taken by the Authority in CHK16’s case was legally unreasonable but that the approach taken in DUA16’s case was not legally unreasonable.
In relation to CHK16, the High Court said at [28] and [29] (footnotes omitted):
28.The circumstances of CHK16’s case are extreme. The Authority was aware that CHK16 intended to provide submissions and that the submissions might contain new information. But it was apparent, as the Authority realised, that the submissions provided by the agent concerned a different person and that none of the personal information related to CHK16. As the Authority was aware, this was the only opportunity that CHK16 would have to provide his own new information, which could be of considerable importance. On CHK16’s case before the delegate, the consequences of refusal of his protection visa could place his life at risk. A request from the Authority for the correct submissions and CHK16’s correct personal information would have been a very simple matter. The Authority had, itself, indicated in its Practice Direction that submissions that were too long would be returned with an opportunity given to provide new submissions. These circumstances reflect the observation of six members of this Court in Minister for Immigration and Citizenship v SZIAI [(2009) 111 ALD 15; [2009] HCA 39]:
“The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.”
29.The legal unreasonableness of the failure by the Authority to get new information by requesting the correct submissions pursuant to s 473DC is plain when the alternative approach taken by the Authority is considered. Rather than taking the simple route of asking for the correct submissions, consistently with its own procedures for returning submissions that are too long, the Authority filleted the submissions that plainly concerned the wrong person into generic and non-generic information. The Authority then treated the generic information in the submissions concerning another person as though the information had been correctly provided in relation to CHK16’s circumstances. On no view could that have been a reasonable course to take.
In relation to DUA16, the High Court said at [34]:
DUA16’s case is different. In DUA16’s case it was not legally unreasonable for the Authority to fail to exercise either its powers under s 473DC to get new information or its powers in the general conduct of the review to get new submissions. The conclusion that the Authority reasonably drew from the submissions with which it was presented, and by having regard to the review material, was that a small amount of the information had been included by mistake. The Authority disregarded these errors and, moreover, pointed out that the requirements in s 473DD of the Migration Act for consideration of new information had not been met. The statutory context and the high threshold of legal unreasonableness precludes a conclusion that it could be legally unreasonable for the Authority to fail to get new information in light of what it reasonably identified as errors in submissions. It was reasonable for the Authority to disregard that information and to explain, in the alternative, why the information could not be considered even if it had not been included by mistake.
Relevant submissions and Authority reasoning in the present case
In the present case, the applicant’s representative provided submissions to the Authority which were received by the Authority on 1 November 2016.
The structure and content of the submissions can be summarised in the following way:
(a)The submissions are four and a half pages in length.
(b)The applicant is identified by name in the heading of the submissions.
(c)The submissions then contain a generic statement that ‘[t]he applicant seeking review has instructed as follows’.
(d)The submissions contain a subheading ‘Grounds for Protection’ under which the requirements of s 5H(1) of the Migration Act are summarised.
(e)The submissions then contain a heading ‘Well founded fear of persecution’. Under this heading, the submissions refer to s 5J of the Migration Act, and then recite case law relating to the circumstances in which an applicant will have a well-founded fear of persecution under the 1951 Convention Relating to the Status of Refugees.
(f)The submissions then contain a subheading ‘Submissions on behalf of the applicant’ which include 38 numbered paragraphs. The content of the submissions under this subheading includes:
(i)general assertions as to errors made by the delegate, including that the delegate failed to give adequate consideration or weight to the complementary protection obligations as a failed asylum seeker, failed to consider the personal circumstances of the applicant including that he could not relocate because the agent of feared persecution is the State, should have given adequate consideration to the facts and information provided by the applicant, should have given weight to the assertions made by the applicant in his statement of claim and in the course of his interview, failed to evaluate the entire corpus of evidence in a logical manner, made a decision that was tainted with error of judgment because the applicant met the requirements of s 36(2) of the Migration Act and should have given consideration to the fact that the applicant is a young Tamil male;
(ii)references to country information in relation to the treatment of persons who have departed Sri Lanka illegally, those categories of persons who are assessed by the United Nations High Commissioner for Refugees as requiring protection, the risk to those who are perceived to have links to the LTTE, the risk to Tamils, and human rights violations;
(iii)references to some claims which might be seen as relating to the applicant’s claims for protection, including that he would be a failed asylum seeker, that he is Tamil, that he fears persecution from the government and that he believes his life would have been in imminent danger if he did not flee from his country of origin;
(iv)general statements of law, some of which were no longer in force at the time of the applicant’s protection visa application and therefore have no relevance in this matter; and
(v)new claims not previously raised, which were identified by the Authority at [5] of its reasons (see below) and which the Authority strongly suspected related to a different person.
In its reasons, the Authority described the content of the submissions at [4] and [5] of its reasons and identified claims raised in the submissions that were not before the delegate. In these paragraphs, the Authority said:
4.On 1 November 2016 the IAA received a submission from the applicant’s representative (IAA submission). The IAA submission in part comprises argument on issues before the delegate and refers to claims and evidence that was before the delegate, which I consider does not constitute ‘new information’ in accordance of s.473DC of the Act. Parts of the submission are a recitation of the law, that bears a striking resemblance to that which appears in many AAT decisions, that was in was force prior to the introduction of the fast track assessment process, and does not apply to visa applications like this one, that were made on or after 16 December 2014.
5.The applicant’s representative has referred to numerous sources of country information that was not before the delegate. She also refers to the following claims that were not previously before the delegate:
•The applicant was reading a Human Rights degree at the University of Colombo in 2013 and is opposed to the Sri Lankan government and its lack of human rights practices
•The applicant was sexually abused by the Sri Lankan Army
•The applicant and his brother were arrested together and the applicant’s brother has since sought asylum in Canada
•The applicant is at risk of harm due to his profile of being a media personality and an ex-police officer.
The Authority at [6] of its reasons recited the law as to when it can have regard to new information and at [7] explained why it did not have regard to the new country information. No issue is taken with those paragraphs in this judicial review application.
At [8], the Authority addressed the new claims in the submissions and said:
The new claims significantly differ from those put forward by the applicant in his [Safe Haven Enterprise visa (SHEV)] application and appear to have no bearing on those claims presented to the delegate in the SHEV interview. Given the applicant’s account of his circumstances prior to leaving Sri Lanka in 2012, it is difficult to relate these new claims to the applicant and I strongly suspect these claims relate to another person. The applicant has never claimed to have attended university, that he was involved in the media or was a police officer, or that he has a brother in Canada, or that he was sexually abused. In any case, the new claims relate to events that pre-date the delegate’s decision and the applicant’s representative has not provided any reason as to why this information was not provided to the delegate before the decision was made. I also note the applicant was legally represented both in respect of his SHEV application and at the SHEV interview and these matters have not previously been mentioned. In the circumstances, I am not satisfied these new claims represent credible personal information or could not have been provided before the delegate’s decision was made.
Knowledge of the decision-maker
While the applicant submitted that the circumstances described above are sufficient on their own to give rise to unreasonableness, he also submitted that there is an additional reason in this case as to why the Authority’s conduct was unreasonable. That reason relates to the knowledge of the particular Authority reviewer who decided the applicant’s case, who had seen and addressed very similar submissions to those advanced in the applicant’s case in four previous cases that he had decided.
The applicant in the affidavits of Mr Wimaleswaran has adduced in evidence the submissions that the applicant’s representative provided to the Authority in relation to other applicants and the four decisions by the same reviewer who decided the applicant’s case which predate his decision in relation to the applicant.
These affidavits show that the same reviewer in four prior decisions had considered submissions provided by the same representative that were in substantially the same terms as those provided on behalf of the applicant. Some had minor formatting changes and two contained minor changes regarding the summary of the law relating to protection visas. One included a small amount of additional information that appeared to relate to that specific applicant.
The reviewer’s reasons in relation to those submissions were, in relevant parts, substantially the same as the reasons given in the applicant’s case. The similarity was so acute that one could infer, as Counsel for the applicant did, that in deciding the applicant’s case, the reviewer cut and pasted the relevant paragraphs from one of those previous decisions and simply changed the dates.
I am prepared to draw an inference based on these documents that the Authority reviewer, in deciding the applicant’s case, was aware that he had considered substantially the same submissions in previous matters.
Did the Authority act unreasonably in not exercising its discretion in s 473DC, or its general powers in conducting the review, by not seeking the correct submission from the applicant or his representative?
Assessing reasonableness is inevitably fact dependent. Indeed, this is easily demonstrated by the different outcomes in the cases of DUA16 and CHK16, as well as in FJH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 174 (FJH17), which is another case referred to by both parties in their submissions. In that case, Judge Champion found that the Authority’s failure to make further inquiries following receipt of the applicants’ submissions containing some information that did not relate to them was not legally unreasonable. The submissions in that case contained substantial personal information about the visa applicants and some information that related to another person: see FJH17 at [10], [13]-[14], [38], [39], [41]. The Court did not accept the applicants’ further submission about the decision-maker being ‘on notice’ that the submissions provided to the Authority were not about the applicants in circumstances where she had four months earlier decided another matter where the same representative had provided a similar submission: FJH17 at [43]-[44].
While each case needs to be assessed on its own facts, previous judgments can provide a guide to assessing the types of matters which will result in legal unreasonableness and those which will not.
In the present case, the applicant submitted that key features of his case are the same as in CHK16’s case, which would make the Authority’s conduct in not seeking correct or updated submissions unreasonable. The applicant also relied on the knowledge of the Authority reviewer, from those earlier cases, to support a submission that the conduct in the present case was even more unreasonable than in CHK16’s case. On the other hand, the Minister submitted that DUA16’s case falls at one end of a continuum and CHK16’s case falls at the other end, and the present case more closely resembles DUA16’s case than CHK16’s case.
In advancing their respective submissions, the parties addressed the content of the submissions provided by the applicant to the Authority.
The applicant submitted that ‘all of the specific factual claims in the submissions were clearly not about the applicant at all but were about some other person’.
On the other hand, the Minister submitted that the submissions contained three categories of information:
(a)country information or information likely to be relevant to more than one person;
(b)more specific claims that related to the applicant, including information about the position for those who departed Sri Lanka illegally, the position for those who fought for or assisted the LTTE and material provided by the applicant in his protection visa interview and the fears held by the applicant in general terms; and
(c)more specific claims that did not relate to the applicant.
In response, Counsel for the applicant submitted that the parts of the submissions said to be about the applicant could not relate specifically to him in circumstances where the same information appeared in the four earlier submissions considered by the same Authority reviewer.
Neither parties’ characterisation of the content of the submissions is inaccurate, but it is necessary to say more about the type of information in the submissions to the Authority that might fall within the second category of information referred to in the Minister’s submissions. This type of information is critical to the Minister’s case.
While I accept that there is, in the submissions to the Authority, information that might be seen as falling within the second category of information identified in the Minister’s submissions, that information is very general in nature and would apply equally to most Sri Lankan Tamil asylum seekers whose matters come before the Authority and this Court. To explain this with greater particularity, I extract below the paragraphs that the Minister has identified as falling within this second category of documents.
The Minister identified three types of information in the submissions to the Authority as specifically falling into the second category.
The first type related to the position for those who had departed Sri Lanka illegally, as the applicant had. The Minister specifically referred to [2] of the applicant’s submissions to the Authority in relation to this. That paragraph of the submissions relevantly reads:
A person who has departed Sri Lanka illegally, on return to Sri Lanka the applicant will be checked by the [(Criminal Investigation Department (CID)] and other authorities at the point of re-entry to verify his identity and determine whether he has any outstanding criminal matters. This will involve an interview, contact with the Police in his home area, his neighbours and family and checking criminal and court records.
The second type of information identified by the Minister relates to the position for those who have fought for or assisted the LTTE, as the applicant claimed to have done. The Minister referred to [2] and [3] of the applicant’s submission to the Authority, which relevantly read:
2.… The December 2012 Guidelines issued by the United Nations High Commissioner for Refugees (UNHCR) … [illegible] perceived links with the LTTE that go beyond residency in an LTTE controlled area may lead to adverse treatment. Specific risk categories identified by former LTTE combatants or cadres; former LTTE supporters who did not undergo military training but were involved in sheltering or transporting goods for the LTTE; LTTE propaganda activists and fundraisers, or persons with family links to such persons. The decision maker failed to take this into account. Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE.
3.Information from the United States State Department also indicates that the Sri Lankan government retains an interest in perceived LTTE sympathisers, assessing that the major human rights problems in Sri Lanka in 2015 included harassment of persons viewed as sympathisers of LTTE. There are also numerous reports of the use of physical and sexual violence against Tamils with suspected LTTE links while in police or military custody including after returning to Sri Lanka from overseas and including since the election of President Sirisena in 2015.
The third type of information identified by the Minister is material provided by the applicant at the interview with the delegate and the fears held by the applicant in general terms. The Minister referred to [10]-[14], [18] and [35] of the submissions to the Authority, which relevantly read:
10.The applicant vividly narrates in his recorded interview and circumstances that triggered him leaving Sri Lanka in order to protect his life.
11.Since the applicant genuinely feared that he will face persecution at the hands of the Sri Lankan government and the forces working alongside with the government.
12.The applicant views that his life would have been in imminent danger if he did not flee from his Country of Origin.
13.The decision maker should have given weight to the assertions made by the applicant in his statement of claim and also in the course of the interview with the Department of Immigration and Border Protection.
14.The decision maker failed to evaluate the entire corpus of evidence in a logical manner.
…
18.The decision maker failed to consider that the applicant is also at risk as amember of the Tamil race.
…
35.It is submitted on behalf of the applicant that he has a well- founded fear of persecution for: (i) reason of his actual/imputed political opinion of being opposed to the Sri Lankan government and its lack of Human rights practices … The applicant is perceived to belong to the social group the LTTE… He is seen as a traitor as he has sought asylum in Australia… The applicant is imputed to be anti-government by the Sri Lankan government authorities, and their security forces and pro-tamil. The applicant is obviously perceived as working against the Sri Lankan government.
Some parts of this information, to the extent that it discloses the applicant’s Tamil ethnicity, his claimed fear on the basis of his imputed LTTE political opinion, his illegal departure from Sri Lanka and that he would be returning as a failed asylum seeker, is ‘personal information’ about the applicant. However, there is no reference to any part of the applicant’s narrative that would distinguish his case from those of other Tamil asylum seekers. There is no personal information referred to in the submissions, other than the applicant’s name, from which the Authority could reasonably infer that the submissions related to this specific applicant and his claims. The Authority summarised the applicant’s claims at [10] of its reasons, including that he undertook three months’ of military training with the LTTE, he assisted the LTTE by monitoring persons coming and going from his village, he was detained and tortured by the Sri Lankan Army (SLA) under suspicion of involvement with the LTTE and the SLA harassed him and commenced an investigation against him in relation to the transportation of goods to the LTTE. Notably, there was no reference to any of this information referrable to the specific narrative of the applicant in the submissions provided to the Authority on his behalf.
The Minister relies on this information in the second category to submit that the present case is distinguishable from CHK16’s case and more akin to DUA16’s case. The affidavit of Mr Wimaleswaran filed on 14 November 2023 annexes submissions which were provided to him by the Minister’s solicitors in response to a request for production of submissions by Ms Sowmiya Rajasekeram (the applicant’s representative) to the Authority in cases where a decision had been made by the Authority. It is not possible for me to determine on the information before the Court which submission relates to the applicant who was later allocated the pseudonym CHK16. However, I have reviewed all the submissions annexed to the affidavit and have concluded that the vast majority of the submissions contain paragraphs that are the same as, or which contain similar information to, those relied on by the Minister in the present case. This reinforces the view I have expressed above that, to the extent that the content of the submissions refers to personal information of the applicant, it is not personal information that refers to his narrative as advanced in his protection claims and distinguishes him from other Sri Lankan Tamil asylum seekers.
I then turn to whether the approach taken by the Authority was unreasonable.
The applicant submitted that the Authority in the present case took the same approach as the Authority took in CHK16’s case, namely ‘filleting’ the generic and non-generic information and considering the generic information while deciding not to consider the claims made by another person.
On the other hand, the Minister, in submitting that the present case is more analogous to DUA16’s case, noted that:
(a)the country information referred to was almost entirely applicable to the applicant and his claims;
(b)there were some submissions directed to the applicant’s specific claims, such as the submissions referring to those with connections to the LTTE and those who left the country illegally; and
(c)therefore this is not a case where none of the personal information related to the applicant.
In my view, it was unreasonable for the Authority not to exercise its discretion in s 473DC of the Migration Act, or its general powers in the conduct of the review, to seek new or correct submissions from the applicant. In circumstances where:
(a)the only personal information in the submissions to the Authority, aside from the applicant’s name, that accurately reflected the applicant’s claims was information that tends to be common to most claims for protection brought by Sri Lankan Tamil asylum seekers;
(b)none of the applicant’s narrative of past harm was referred to in the submissions; and
(c)the only personal information that addressed a specific or unique narrative contained in the submissions was information that the Authority correctly identified was not about this applicant,
the Authority ought to have taken the simple step of making an inquiry of the applicant or his representative as to whether the correct submissions had been provided or otherwise inviting the applicant to provide the correct submissions.
The point that I have made at subparagraph (a) in the paragraph immediately above differs from the way that the applicant has advanced his case but explains why I do not accept the Minister’s submissions. The nature of the personal information in the applicant’s submissions to the Authority is very different to the nature of personal information that was included in the submissions provided to the Authority in DUA16 and FJH17’s cases, and which contributed to the courts finding that it was not legally unreasonable for the Authority not to exercise its discretion to get new information or request the correct submissions in those cases. In those cases, the personal information included in the submissions related to the specific claims for protection and narrative, including past harm, of the specific applicant in a way that might distinguish the applicant’s claims from those of another Sri Lankan Tamil asylum seeker.
In my view, this distinction is relevant and critical to the outcome of this matter. The Authority recognised in its reasons the importance of considering the particular circumstances of an applicant, rather than common characteristics shared by many Sri Lankan Tamil asylum seekers, in assessing whether an applicant meets the criteria for a protection visa. For example, at [39] of its reasons the Authority referred to the UNHCR 2012 Guidelines for assessing eligibility of Sri Lankans for asylum and noted that being of Tamil ethnicity alone does not give rise to the need for protection and there is no longer any presumption of a requirement for protection for reason of being a Tamil from a former LTTE controlled area. The Authority also referred to information in these guidelines that only persons suspected of certain links to the LTTE may be in need of international refugee protection, depending on the individual circumstances of the case. The Authority’s consideration of whether the applicant would face harm as a result of his illegal departure or as a failed asylum seeker was also based on country information applicable to all Sri Lankan asylum seekers who departed Sri Lanka illegally. The Authority implicitly recognised that whether an applicant would face a real chance of serious harm or a real risk of significant harm on these bases would depend on their individual circumstances when it said at [46] that there is no suggestion the applicant was anything other than an ordinary illegal departee from Sri Lanka.
In these circumstances, it is significant that the only information in the submissions to the Authority that refers to any specific narrative did not relate to the applicant.
In reaching the view that the Authority acted unreasonably in this case, I have had regard to the parties’ submissions based on the knowledge of the particular Authority reviewer who made the decision in this matter. In my view, however, the knowledge of the particular Authority reviewer does not add anything material to the assessment of unreasonableness in this case.
Having received submissions that contained no distinguishing personal information about the applicant other than his name, and where the Authority recognised that the distinguishing personal information in the substantive part of the submissions did not relate to this applicant, I would find that the Authority acted unreasonably in not inviting the applicant to provide new or correct submissions irrespective of whether the reviewer had seen the same submissions in a previous matter.
The Authority’s unreasonableness did not turn on any actual or constructive knowledge of the representative’s fraud. There is nothing to suggest that the Authority in the present case was aware of the fraudulent conduct of the representative, just as the Authority was unaware of the agent’s fraud in the cases considered in DUA16.
Conclusion in relation to ground 1
For the reasons given, I find that the Authority acted unreasonably in failing to exercise its discretion in s 473DC, or its general powers in the conduct of the review, to invite the applicant to provide new or correct submissions. It follows that the applicant must succeed in his judicial review application and writs will issue.
GROUND 2
By ground 2, the applicant asserts that the Authority acted unreasonably by departing from a finding made by the delegate in relation to the applicant’s credibility without first exercising its discretion in s 473DC of the Migration Act to invite the applicant to attend an interview.
The particulars to ground 2 identify two findings made by the Authority which allegedly depart from the delegate’s credibility findings. Those findings are the Authority’s rejection of the applicant’s claim that he had received military training with the LTTE and its finding that he had not been detained.
The applicant’s submissions refer to these two findings as examples. In his submissions, the applicant said at [29] (emphasis added):
The IAA expressly rejected claims that had been explicitly accepted by the delegate, such as the claim to have been detained and interrogated, and claims that had been implicitly accepted in the overall credibility finding, such as the claim to have received military training from the LTTE.
No other specific findings have been identified and in circumstances where the particulars only refer to the two findings, I treat the ground as being limited to those two findings.
The High Court’s judgment in ABT17
In advancing this ground, the applicant relies on the High Court’s judgment in ABT17.
In that case, the plurality of the High Court (Kiefel CJ, Bell, Gageler and Keane JJ) explained at [25] that:
… the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred 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.
The High Court identified that where a referred applicant attended an interview in person with the delegate, and the review materials provided to the Authority contain an audio recording of that interview, but not a video recording, the Authority is not ‘in the position of having and being able to examine for itself the totality of the information available to the delegate’ because it does not have a visual impression of how the referred applicant appeared during the interview, namely, his or her demeanour: [13]. The High Court found that an informational gap of that nature has the potential to impact on the Authority’s assessment of the referred applicant’s credibility: ABT17 at [14].
The High Court accepted the Minister’s submission that 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]. This is explained at [22] and [23], where the High Court said (footnotes omitted):
22.The mere existence of an informational gap will not necessarily result in the Authority being “disadvantaged in comparison with the delegate”. That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority’s determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
23.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.
In ABT17, the Authority rejected the referred applicant’s account of having been detained, beaten and sexually tortured by the SLA on suspicion of having been an LTTE supporter and relied on this finding in concluding that there was no credible evidence that the referred applicant was of any interest to the Sri Lankan authorities: ABT17 at [27]. In reaching this conclusion, the Authority found that the evidence given at the interview with the delegate was ‘generally lacking in detail’ and that the referred applicant ‘appear[ed] unable to expand in any detail on a number of his written claims and at times sound[ed] vague and hesitant’: ABT17 at [27]. The Authority did not suggest that anything else in the review material ‘rendered the [referred applicant’s] account of having been detained and beaten and sexually tortured inherently improbable’: ABT17 at [28].
The High Court concluded at [29]:
Had the Authority acted reasonably in performing its duty to review the decision of the delegate cognisant of its informational disadvantage in assessing the credibility of the appellant when compared with the delegate, the Authority would not have rejected the appellant’s account of having been detained and beaten and sexually tortured on the basis of how he sounded on the audio recording without inviting him to a further interview so as to see him as well as hear him. By failing to invite the appellant to a further interview, the Authority transgressed the reasonableness condition implied into both the imposition of its duty to conduct a review and the conferral of its powers to get and consider new information in conducting a review.
Assessment of the applicant’s credibility by the delegate and by the Authority
The applicant claimed that he had been detained and tortured by the SLA during the civil war. The delegate described and addressed this claim in the following way (footnotes omitted):[1]
During the civil war the applicant claims that he was taken to [name] Army Camp in [place A]. He stated that he was “rounded up” by the Army. While this was occurring the applicant claims he was asked several questions by official about his involvement in the movement. He stated that he informed them that he was never part of the movement and was not in possession of any weapons as suspected by the Army officials. He describes described that because he resided in a village and province known to be supporting the LTTE he was considered as someone who maybe assisting the “movement”. He denies that he or his family had any actual links to the LTTE. He describes being hit by the Army on the back of his head, which caused him to “faint” and being admitted to hospital. I am satisfied that the Army captured the applicant along with many other males during the civil war in Sri Lanka.
The applicant claims that he was gruesomely tortured. While in detention, he states wires were placed underneath his finger nails. I accept that it is plausible that the applicant may have been subjected to interrogation. However as discussed with the applicant at the interview, it is reasonable to consider that people who have been subjected to severe torture as claimed by the applicant would require prolonged intensive medical treatment and rehabilitation – leading me to concluded that he would face serious challenges in leading a normal life. While at the interview, I observed the applicant’s hands. The applicant has no noticeable issues with his hands Furthermore, the applicant states he was beaten on his head with a pipe regularly. Furthermore the applicant claims that he was in a cell for two years in complete darkness. It is my view, that this incident has been exaggerated for the purposes of strengthening his claims. He stated he visited the Army hospital to treat his claimed injuries; upon leaving the camp, the applicant claimed he did not obtain medical assistance after being released. Considering the information before me and the applicant’s responses during the interview it is unlikely the applicant was subjected to torture and prolonged detention in a pitch black room as claimed.
When asked whether he received any visitors from international aid agencies, he claimed he was in contact with the International Committee of the Red Cross (ICRC). He states they visited him while in detention. However when asked to clarify, whether they did in fact visit, he stated that they did not. He claims to have received documents from the organisation; he stated that a number of the documents were destroyed in Sri Lanka. The inconsistency in the applicant’s statements adds to credibility concerns regarding his claims of being tortured and in detention. This indicates that he is embellishing his claims to assist his claims.
…
Overall though, I am satisfied that the applicant’s claims are consistent with country information which indicates that, during the civil conflict, more Tamils were detained under emergency regulations and the Prevention of Terrorism Act 1979 (PTA than any other groups and many Tamils, particularly in the norther and east, reported being monitored, harassed, arrested and/or detained by security forces under the former Rajapaksa government.
…
Overall, I have found the applicant has been generally credible in relation to questions around his family, religion and geographical information. However, I have significant concerns regarding his central claims in relation to the harm the applicant fears and has experienced from the authorities in Sri Lanka. As stated above, I have found elements of the applicants claim to be embellished for the purposes of improving his claim for protection.
[1] Throughout the extracts of the delegate’s and the Authority’s decisions, any place names and dates that might enable the applicant to be identified have been replaces with more generic descriptions.
As can be seen from this extract, the delegate accepted that the applicant had been detained and interrogated but did not accept that he had been tortured, finding that this aspect of his claims had been embellished.
The delegate did not, anywhere in the decision record, identify the applicant’s claim to have undertaken military training with the LTTE and did not make any finding, direct or indirect, in relation to any such claim. Rather, as can be seen from the first paragraph in the extract of the delegate’s decision above, the delegate noted the applicant’s claim that neither he nor his family had any actual links to the LTTE. I do not accept the applicant’s submission that the delegate accepted his claim to have received military training from the LTTE as part of any overall credibility finding. To the extent that the ‘overall credibility finding’ relied on by the applicant is based on the extract above, I would observe that receiving military training from the LTTE does not fall into any of the categories of family, religion and geographical information about which the delegate found that the applicant had been generally credible.
The Authority rejected the applicant’s claim that he had been detained at an army camp. The Authority also found that the applicant’s claim to have received training from the LTTE in 1999, raised the first time following the natural justice break in his protection visa interview, undermined his credibility, particularly in circumstances where less than 30 minutes earlier he was expressly asked whether he had undertaken any training with the LTTE and responded that he had not. It is implicit from the Authority reasons that the Authority rejected the applicant’s claim to have received military training.
In reaching these findings, the Authority made adverse credibility findings against the applicant. The Authority identified a number of inconsistencies and implausibilities in the applicant’s evidence which, considered cumulatively, undermined his credibility. Not all of these relate to the applicant’s claims to have been detained by the SLA or to have received military training from the LTTE. However, given the cumulative impact of these findings on the assessment of the applicant’s credibility, it is appropriate to identify all the reasons why the Authority made an adverse credibility finding against the applicant. These are identified at [21] to [32] where the Authority said:
21.Firstly, the applicant’s claim that in 1999 he undertook three months of military training with the LTTE was first raised at the end of the SHEV interview following a ‘natural justice break’ (which is an opportunity for the applicant to consult privately with his representative). However, this new information contradicted the applicant’s own evidence earlier in the same interview where he explicitly advised the delegate that he had never undertaken training with the LTTE. Further, in the entry interview, the applicant advised the interviewing officer that he had never received training in preparation for conflict and had never been involved in military service.
22.Secondly, the applicant’s claim that he assisted the LTTE following the training was also first raised in the SHEV interview following the ‘natural justice break’. This new claim also contradicted his own evidence earlier in the interview where he advised the delegate that although suspected by the authorities, he had no prior involvement with any military groups, including the LTTE.
23.Thirdly, when the applicant was asked in the SHEV interview if any of his family had ever been involved in any political or military groups, his response was ‘no’. However, when asked a similar question in the entry interview, the applicant said that his brother was a member of the LTTE and worked as a driver.
24.Fourthly, according to the applicant’s SHEV application form he resided in [place B] District since birth until he departed Sri Lanka in October 2012. However, according to the information he provided in the entry interview (and in part supported by copies of his passport and birth certificate submitted), the applicant was born in [place C] ([place A] District), lived in [place B] District until 2007, moved back to [place A] District until August 2012, and then moved to Colombo until … October 2012. He also indicated in his SHEV statement that he was living in [place D] for a period; however, this was inconsistent with the information he provided at the entry interview and in his SHEV application form.
25.Fifthly, the applicant’s claim in his SHEV statement that he was hiding in temples and churches and forced to flee to India was not consistent with the travel and residential history he provided in this SHEV application and at the entry interview.
26.Sixthly, the applicant’s claim in his SHEV statement that the SLA commenced an investigation against him in relation to the transportation of goods to the LTTE was inconsistent with the evidence he provided at the SHEV interview where he indicated authorities interest in him was due to his prior residence in [place B] District…, a suspicion that he had hidden weapons for the LTTE, and suspicion that he had been involved in some ‘isolated shooting incidents’.
27.Seventhly, towards the end of the SHEV interview the applicant claimed that his family were being continuously harassed by the Sri Lankan authorities. However, this contradicted his evidence earlier in the interview where he said that his family had last been visited by the authorities in February 2016, and that they were now safe and living without problems since moving to [place B] District.
28.Eighthly, according to an Affidavit from the applicant’s wife, dated 20 February 2016, and a letter from the village officer (undated), the applicant left [place A] District for Colombo on 16 August 2012. This was consistent with information provided by the applicant in his entry interview. The applicant also advised in the entry interview that in 2012 he obtained his driver’s licence in [place A]. However, the licence shows it was issued to the applicant on [date], after the applicant had claimed to have moved to Colombo to commence his journey to Australia.
29.Ninthly, the employment history provided by the applicant in his SHEV application where he stated that he was a self-employed driver and plasterer, differed from the information he provided in the entry interview where he stated that during the same period he was an ‘employee’ working as a mason/bricklayer and a driver.
30.At the end of the SHEV interview the applicant’s representative submitted that the applicant’s prior LTTE training in 1999 was likely the reason why he was subsequently suspected of LTTE involvement nearly 10 years later in 2008. However, I find the applicant raising such a material claim for the first time following the natural justice break to undermine his credibility. Particularly in circumstances where the applicant was directly asked by the delegate less than 30 minutes prior whether he had undertaken any training with the LTTE and he responded that he had not, which I note was consistent with his earlier evidence in the entry interview. The delegate provided the applicant an opportunity to comment in relation to his inconsistent evidence regarding his prior LTTE training and involvement; however, no response was offered.
31.The applicant’s claim that he was detained [in]… August 2008 until … January 2010 was broadly consistent with the information he provided in the entry interview. In the SHEV interview, the applicant advised the delegate that for the entire period of his detention he was kept in a small room. He was confined to his room 24 hours a day and not allowed to go out. He did not know if it was day or night. He could not advise the delegate whether there were other Tamils in the camp because he was prevented from seeing other people. Following his release, the applicant stated that he wanted to move back to [redacted] but was prevented from doing so due to the requirement that he report/sign each month at a CID office in [redacted]. He said that he last signed [in] … August 2012. The applicant said he was unable to provide evidence of his detention because the SLA intercepted the relevant supporting documents at the post office when his wife attempted to mail them to him in 2015.
32.According to information provided in his SHEV application, including a birth certificate, one of the applicant’s children was born [in] … April 2010. Given the applicant’s claim that he was incarcerated and kept in conditions akin to solitary confinement until … January 2010, this leads me to conclude it is highly implausible that the applicant was detained in [name] Army Camp for the period or in the circumstances claimed.
The Authority then expressed its relevant conclusion at [33], where it said:
When considered cumulatively, I find the above inconsistencies and implausibilities to be significant, and undermine the applicant’s credibility. I am not satisfied that the applicant was recalling his claims from a genuine personal experience. I also find that the applicant was issued a Sri Lankan passport in Colombo on [date] indicative that he was not a person of whom the authorities were seeking to prevent travelling outside of Sri Lanka. In circumstances where the applicant claimed that he was under reporting conditions so strict that he could not move to another district within the same province, I do not accept that he would have been able to obtain a travel document if he was being monitored or confined to a specific area by the CID as claimed. I also note that the applicant had no difficulty obtaining or renewing his driver’s licence in [place A] on [date], which was a month and half after he claimed to have stopped attending his mandatory monthly reporting in the same district. For the above reasons, I conclude that the applicant has fabricated his claimed detention at [name] Army Camp on account of imputed LTTE links or involvement in ‘isolated shooting incidents’. Further, I do not accept that the applicant had an adverse profile with the SLA or the CID as claimed and I give no weight to the letters from the village officer and the Affidavit from his wife that reiterate these claims. It follows that I reject the applicant’s associated claims that he was required to report and sign monthly, that he was harassed at his home, that he was forced to go into hiding, or that he fled to India. I also reject the applicant’s claims that the SLA commenced an investigation against him in relation to the transportation of goods to the LTTE, or for any other reason. I do not accept that after his arrival in Australia the CID and/or SLA visited and/or harassed his family, or that in December 2015 the SLA intercepted documents being sent to him from Sri Lanka that evidenced his detention at [name] Army Camp.
It can be seen that the Authority’s adverse credibility findings were based on contradictions in the applicant’s own evidence given at various times, inconsistencies in his evidence and the implausibility of the applicant having been incarcerated and kept in conditions akin to solitary confinement in circumstances where one of the applicant’s children was born only a few months after this.
Was it unreasonable for the Authority to make adverse credibility findings not made by the delegate without inviting the applicant to attend an interview?
The applicant submitted that there were multiple references to his physical appearance and the manner in which he gave his responses in the delegate’s decision, and it is therefore clear that those matters featured in the delegate’s evaluation of the applicant’s evidence. The applicant submitted that it was unreasonable for the Authority to make adverse credibility findings without inviting the applicant to attend an interview so that the Authority could assess the applicant’s demeanour for itself.
The Minister submitted that it was not unreasonable for the Authority not to invite the applicant to an interview to assess his demeanour because:
(a)no part of the Authority’s rejection of the applicant’s claims in the present case depended on his presentational demeanour in the interview;
(b)the Authority’s rejection of claims was almost entirely founded on inconsistencies in the applicant’s evidence; and
(c)to the extent the applicant’s appearance was mentioned at all by the Authority, such as by referring to scars on his chin, the Authority proceeded on the basis that the scars existed but found they were not caused by events claimed by the applicant and such findings followed from the Authority’s findings on inconsistencies and not the applicant’s demeanour.
The Minister submitted that it is not necessary to invite the applicant to an interview just because a delegate refers to the physical appearance of an applicant or because the Authority rejected a claim that the delegate accepted. The Minister submitted that this is a case similar to BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 594; [2020] FCAFC 189 at [84] in which the Authority decision was based on factual inconsistencies and not anything to do with an adverse assessment of demeanour.
In response, the applicant submitted that it is not sufficient to simply say that the Authority dismissed the applicant’s claims on the basis of inconsistencies and therefore ABT17 does not play a part, because the same inconsistencies that troubled the Authority were also before the delegate. The applicant submitted that the delegate, but not the Authority, had the benefit of viewing the applicant present his evidence. Therefore, the Authority did not have the demeanour and physical presentation of the applicant to offset the concerns that the Authority had about the inconsistencies in his evidence.
In my view, it was not unreasonable for the Authority, in the circumstances of the present case, to make the adverse credibility findings it did without first inviting the applicant to attend an interview so that the Authority could assess his demeanour for itself. To the extent that ABT17 provides guidance on one type of situation in which it may be unreasonable for the Authority not to invite a referred applicant to attend an interview so that it can assess for itself the referred applicant’s demeanour, the present case is readily distinguishable from ABT17.
To the extent that the ground is based on the Authority’s rejection of the applicant’s claim to have undertaken military training with the LTTE, I have found above that the delegate did not identify, let alone accept, the applicant’s claim to have received military training from the LTTE. I have therefore rejected the factual basis on which this part of the ground is based and it follows that this cannot be a matter where the Authority ‘reject[ed] an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision’ (emphasis added): ABT17 at [25]. The Authority’s identification and rejection of the applicant’s claim to have undertaken military training with the LTTE was based on its own review of the referred materials. The Authority did not act unreasonably in making the findings it did without first exercising its discretion under s 473DC of the Migration Act to invite the applicant to attend an interview.
I also consider that the present matter is distinguishable from ABT17 insofar as the ground relates to the Authority’s rejection of the applicant’s claim to have been detained and interrogated by the SLA.
The Authority’s assessment of the applicant’s credibility was not made wholly or substantially on the basis of its own assessment of the manner in which the applicant presented his account to the delegate. The Authority did not refer to the manner in which the applicant gave his evidence at the protection visa interview (as opposed to the content of that evidence). This can be contrasted from ABT17 in which the Authority rejected claims accepted by the delegate because they were generally lacking in detail and on the basis of how the referred applicant sounded on the audio recording.
Rather, the Authority in the present case formed its own assessment of the review materials and gave detailed reasons for rejecting the applicant’s claims because of the inconsistencies and implausibility identified. This approach was open to the Authority without inviting the applicant to attend an interview.
I do not accept the applicant’s submission that there are multiple references in the delegate’s decision record to the applicant’s physical presentation and the manner in which he gave his responses and it is therefore clear that those matters featured in the delegate’s evaluation of the applicant’s evidence. The only references made by the delegate to the applicant’s appearance at the interview or credibility in assessing the factual aspects of the applicant’s claims were:
(a)‘While at the interview, I observe the applicant’s hands. The applicant has no noticeable issues with his hands.’
(b)‘Considering the information before me and the applicant’s responses during the interview it is unlikely the applicant was subjected to torture and prolonged detention in a pitch black room as claimed.’
(c)‘Overall, I have found the applicant has been generally credible in relation to questions about his family, religion and geographical information. However, I have significant concerns regarding his central claims in relation to the harm the applicant fears and has experienced from the authorities in Sri Lanka. As stated above, I have found elements of the applicant’s claim to be embellished for the purposes of improving his claim for protection.’
The applicant’s submission that the delegate relied on the applicant’s physical appearance and demeanour in accepting that the applicant had been detained by the SLA is overstated. The reference to the applicant’s hands, and the observations in relation to the applicant’s responses during interview referred to at (b) in the preceding paragraph, to the extent that they may be seen to reflect the demeanour and presentation of the applicant, were matters that caused the delegate concern. Further, as can be seen from (c) in the preceding paragraph, while the delegate commented positively on the applicant’s credibility in relation to some aspects of his claims, it expressly excluded the ‘central claims’ about the harm the applicant fears and has experienced from the Sri Lankan authorities. This does not suggest that the delegate relied on the applicant’s demeanour in any material way in accepting that he had been detained and interrogated. Rather, the delegate’s findings in this regard appear to be based on this claim being plausible taking into account country information. Counsel for the applicant submitted that it was not necessary for the delegate to expressly refer to the applicant’s demeanour in its decision, noting that the delegate’s reliance on demeanour was inferred in ABT17. However, given the matters just referred to, I am unwilling to draw the inference in the present case insofar as it relates to the delegate’s acceptance that the applicant was detained and interrogated.
While the Authority referred in its reasons to scarring on the applicant’s chin and head as described in the protection visa interview, the delegate did not refer to these things in its decision. It is speculative to assume that any scarring played a role in the delegate’s acceptance that the applicant had been detained and interrogated. I accept the Minister’s submission that the Authority’s finding that the scars were not caused by the events claimed by the applicant was based on its findings in relation to inconsistencies rather than the applicant’s demeanour and appearance.
In all the circumstances, the Authority did not act unreasonably in rejecting the applicant’s claims to have been detained without first exercising its discretion under s 473DC of the Migration Act to invite the applicant to attend an interview.
Conclusion on ground 2
I do not accept that the Authority in the present case has acted unreasonably in failing to invite the applicant to attend an interview to assess his demeanour before making adverse credibility findings against him. Ground 2 is not established.
CONCLUSION
Given that I have found that jurisdictional error is established by ground 1, the applicant succeeds in his application to this Court. A writ of certiorari will issue to quash the Authority decision and a writ of mandamus will issue to require the Authority to reconsider the review according to law.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 13 December 2023
3
9
1