DDP16 v Minister for Immigration
[2020] FCCA 1248
•27 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDP16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1248 |
| Catchwords: MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – whether the Authority failed to properly consider psychological report – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473DD, 476 |
| Cases cited: SZORG v Minister for Immigration & Citizenship [2011] FCA 647 |
| Applicant: | DDP16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2303 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 31 July 2018 |
| Date of Last Submission: | 24 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Hodges Legal |
| Solicitors for the Respondents: | Mills Oakley |
| Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2303 of 2016
| DDP16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) dated 4 October 2016. The Authority affirmed a decision of a delegate (Delegate) of the then Minister for Immigration & Border Protection (Minister) to refuse to grant the Applicant a Safe Haven Enterprise (subclass 790) visa (Visa).
The Applicant seeks judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (Act). In determining this application, the Court has had regard to the Applicant’s amended application filed on 3 August 2018 (Amended Application), a Court Book numbering 274 pages, an outline of written submissions from the Applicant dated 30 July 2018, outlines of written submissions filed by the Minister dated 17 July 2018 and 24 August 2018 (Minister’s Supplementary Submissions) and the transcript of the hearing that took place before the Court.
Background
The Applicant is a citizen of Sri Lanka[1]. He arrived in Australia as an unauthorised maritime arrival on or around 24 September 2012[2]. By virtue of the Applicant’s arrival, he was barred from applying for a protection visa. For this reason, the Applicant’s application for the Visa was deemed invalid[3].
[1] Court Book (CB) 3.
[2] CB 32.
[3] CB 19-91.
On 17 September 2015, the Applicant was advised that the Minister had “lifted the bar” and he was invited to apply for the Visa[4]. On 11 January 2016, the Applicant applied for the Visa[5]. His claims can be summarised as follows[6]:
[4] CB 93-100.
[5] CB 101-143.
[6] CB 141-143.
a)The Applicant is a Tamil Hindu.
b)Since the Applicant’s childhood, he has been subjected to harassment, beating and intimidation by the Sri Lankan Army (SLA).
c)In 2006, the Applicant, when working as a taxi driver, witnessed four colleagues being shot and killed because they were suspected of working for the SLA. After the incident, the Applicant and other colleagues were detained by the SLA, interrogated about their involvement with the Liberation Tigers of Tamil Eelam (LTTE) and beaten.
d)After his release the Applicant was forced to work as an informer for the SLA. He felt his life was in danger as the SLA kept a close eye on him and monitored his movements and he felt that he was a “traitor” to other villagers and was disliked and ostracised.
e)The Applicant informed the SLA of customers who had used his hire service at night. After notifying the SLA, various “incidents” happened at the locations the Applicant dropped these customers.
f)The Applicant had heard that young Tamil males, including “three wheel drivers” like him, were being specifically targeted by unknown persons suspected of having links to the SLA and this caused him to flee.
g)The Applicant fears he will be harmed by villagers if he returns and continues to provide information to the SLA.
h)The Applicant lives in constant fear that he will be accused as having links to the LTTE as Tamils from the north are frequently perceived as such and targeted by the SLA.
i)The SLA have attended the Applicant’s home since he left and are looking for him. His younger brother has fled to Switzerland and obtained asylum.
j)He believes that he is at risk of being harmed and possibly killed by the SLA and/or members of the Tamil paramilitary groups, as he is a Tamil who originates from the north who previously came to the adverse attention of, and was tortured by, the SLA on account of his ethnicity and perceived involvement with LTTE. He fears that he would need to continue to work as an informer if returned to Sri Lanka. This leads him to also fear that those residing in his village may suspect that he has links with the SLA.
k)The fact that the Applicant has visible scars due to the torture he experienced in 2006, coupled with the fact that he fled Sri Lanka illegally and claimed asylum in Australia, could exacerbate the risk of being harmed by the authorities.
The Applicant attended an interview before the Delegate on 16 February 2016[7]. On 23 February 2016, the Applicant’s migration agent sent extensive submissions and supporting country information to the Delegate[8].
[7] CB 149-151.
[8] CB 156-185.
On 5 August 2016, the Delegate refused to grant the Applicant the Visa[9]. The Delegate was not satisfied that the Applicant met the criterion to be granted the Visa.
[9] CB 188-222.
On 9 August 2016, the Applicant’s matter was referred to the Authority for review[10]. On 29 August 2016, the Applicant’s migration agent forwarded the Authority the following documents[11]:
a)A Statutory Declaration sworn by the Applicant, dated 18 August 2016 (Statutory Declaration)[12];
b)Written Submissions (Agent’s Submission)[13];
c)A letter from a psychologist, dated 18 October 2014; and
d)Country information.
[10] CB 224-232.
[11] CB 233-244.
[12] CB 236-237.
[13] CB 238-239.
On 5 September 2016, the Applicant’s migration agent forwarded a Psychological Assessment (Assessment) to the Authority, dated 3 September 2016[14].
[14] CB 246-250.
On 4 October 2016, the Authority affirmed the decision not to grant the Applicant the Visa[15].
[15] CB 256-274.
Authority’s Decision
The Authority’s decision appears at pages 256-274 of the Court Book. The Minister’s written submissions dated 17 July 2018 accurately summarise the Authority’s decision. The Court adopts those submissions, with some changes, as follows.
In relation to the new materials sent to the Authority, the Authority:
a)Did not consider that the Agent’s Submission or the Statutory Declaration contained “new information” as defined in the Act, and had regard to them[16];
b)Was not satisfied that there were exceptional circumstances which justified considering the news reports, as they contained similar information to that considered by the Delegate[17]; and
c)Found that there were exceptional circumstances that justified considering the medical references, as they contained credible personal information which was not previously known and may have affected the consideration of the Applicant’s claims[18].
[16] CB 257, at [5]
[17] CB 287, at [6].
[18] CB 258, at [7].
The Authority noted that there were significant inconsistencies in the Applicant’s claims as presented at different stages of his Visa application process[19]. The Authority set out in some detail the Applicant’s evidence in relation to:
a)The claimed shooting of his colleagues[20], and his detention after that incident[21].
b)The claimed links with the LTTE[22].
c)The claims that he had been an informant for the SLA[23].
d)The claims that his family had been visited by the SLA after his departure[24].
[19] CB 258, at [8].
[20] CB 258-259, at [10]-[15].
[21] CB 259, at [16].
[22] CB 259-260, at [17]-[18].
[23] CB 260, at [19]-[21].
[24] CB 261-261, at [22].
The Authority referred to the Applicant providing a “most unsatisfactory account of the circumstances”. The Authority had regard to the Applicant’s inconsistent testimony and failure to mention key events until prompted by the Delegate. It took into account the comments of the Applicant’s psychologist that he suffered from depression, anxiety, and a range of other psychological conditions, but found that there were significant discrepancies in the Applicant’s evidence, which was “at best, unreliable” and consequently it accepted only some aspects of his claims[25]. It will be necessary to return to this in due course.
[25] CB 261, at [23]-[25].
At [26], the Authority stated:
Although the applicant says that the interpreter at the arrival interview was rude and told him to speak briefly, I consider it significant that what the applicant said at the two initial arrival interviews about the reasons for his departure from Sri Lanka is broadly consistent with the account in the Tamilnet report which he submitted in support of his 2013 protection visa application. Given the problems with his later evidence about the claimed shooting incident, I prefer this earlier version of events. I find that the four people named in the Tamilnet article, whose names are consistent with those provided by the applicant in his subsequent statutory declarations, were murdered by the SLA, as reported by Tamilnet, in open land near the army camp. I do not accept that the applicant witnessed the murders of four auto-rickshaw drivers at the stand where he and several drivers were waiting. I consider it possible that the auto-rickshaw driver reported in the article as having been stopped by the SLA when he went looking for the missing persons was, in fact, the applicant, consistent with his claim in the entry interview that he was stopped by the SLA when he visited the site where the people were shot the following day.[26]
[26] CB 261, at [26].
The Authority considered the migration agent’s explanations for why there were inconsistencies in the Applicant’s evidence relating to the shooting incident. However, on the basis of the differing accounts provided by the Applicant as to the number of people who were shot during the incident in the Applicant’s later evidence, and the lack of credible information to indicate that the Applicant was at risk of harm as a taxi driver in the years after the end of the war and prior to his departure from Sri Lanka, the Authority did not accept that the incident occurred as claimed[27].
[27] CB 262-263, at [28]-[29].
At [29], the Authority stated:
As I do not accept that the applicant witnessed the shooting of auto-rickshaw drivers in the circumstances described in his SHEV application, I do not accept that he was arrested and detained by the SLA immediately afterwards. As noted above, I consider it plausible that, as he stated at the entry interview and consistently with the Tamilnet article, he was “stopped” and questioned when he went to the site the next day. However, I do not accept that the applicant was detained for two or three months and questioned as he subsequently claimed. Apart from the fact that I do not accept the version of events which he claims led to this lengthy detention, his evidence about what happened during this detention and the reasons for it are, in my view, not credible. First, I do not accept that the applicant would have been questioned about who killed the drivers when, according to his own evidence, they were shot either by the army, or by paramilitaries associated with the army. Second, if the applicant had really been suspected of having links with the LTTE, it is not apparent why he too would not have simply been killed. Third, he has given inconsistent and somewhat implausible accounts of why he and the other drivers were suspected of having links with the LTTE. He stated initially that the drivers were compelled to drive LTTE family members and associates to Heroes’ Day functions, but later said that the reason they were under suspicion was that the Heroes’ Day event was held near the auto stand. As noted above, although the applicant had claimed in his 2016 statutory declaration that LTTE leaders frequented his uncle’s garage, and it was because of this association that the applicant had been required to drive them around, he did not mention this connection at any earlier stage of his application. Indeed, in both arrival interviews and in his 2013 statutory declaration he stated that neither he nor his family had any association with the LTTE and he did not mention his uncle’s connection at the SHEV interview until the earlier claim that he did was explicitly put to him. In these circumstances, I do not accept that there was a significant LTTE connection through his uncle. I accept that LTTE members may have had their vehicles repaired at his uncle’s garage and that the applicant would have given LTTE members rides from time to time. I do not consider that this association would have been viewed as significant by the Sri Lankan authorities either during the war or subsequently, and I do not accept that the applicant came to the adverse attention of the Sri Lankan authorities because of actual or imputed links to the LTTE. I do consider it plausible that three wheeler drivers would have been regarded as a useful source of information about the movements of LTTE members, and I accept that in these circumstances, the applicant may have been asked to provide information to the SLA from time to time. I do not accept, however, that he was required to inform the army camp of every night hire that he undertook over a six year period.[28]
[28] CB 262-263, at [29].
The Authority did not accept that any information about persons which the Applicant had provided to the SLA was used to harm those persons. The Authority found this claim to be implausible, and noted that, in any event, no harm came to any person who he informed on after 2009[29]. The Authority did not accept that the Applicant had a profile as an actual or suspected LTTE supporter or member. However, it accepted that the Applicant may have been asked about movements of known or suspected LTTE members because of his role as a driver. The Authority did not accept that the Applicant’s profile in relation to the LTTE was elevated in any way because of his relationship with his uncle (who may have associated with LTTE leaders at his garage)[30].
[29] CB 263, at [30]
[30] CB 263, at [32].
The Authority did not accept that the Applicant had been an informant over a six year period. It accepted that he may have been asked for information from time to time by the SLA and that other villagers may have suspected that he was an informer and shunned him, however the Applicant’s evidence did not establish that this resulted in serious or significant harm. It was noted that while the Applicant stated that he feared that villagers might harm him, it appeared that they had had ample opportunity to do so and had not[31]. The Authority did not accept that the Applicant’s family had been asked about him since his departure[32].
[31] CB 263-264, at [33].
[32] CB 264, at [34].
On the Applicant’s own evidence, the Authority found that he was neither a member nor supporter of the LTTE. It found that any interest the SLA had in the Applicant prior to his departure was directed at him broadly as a Tamil from a formerly LTTE controlled area. However, the Authority accepted that he was of additional interest because of his work, as it gave him access to information about the movements of people who may themselves have been of interest to the SLA. The Authority accepted it as plausible that the Applicant would have been questioned by the SLA on occasions, in light of the security situation. However, there was no credible evidence before the Authority to indicate that the Applicant was of adverse interest to the authorities after the end of the war, and the Applicant did not claim to have been subjected to any questioning, investigation, arrests or monitoring which would suggest that he himself was not suspected of having any past links to the LTTE, or that he was of any ongoing interest to the Sri Lankan authorities after 2006. Given that the end of the war was in 2009, the interest by the SLA in any information the Applicant could have obtained was diminished[33].
[33] CB 264-265, at [38].
Having referred to country information, the Authority did not accept that the Applicant faced a risk of harm solely on the basis of his Tamil ethnicity and due to being a prior resident of areas previously under the control of the LTTE[34]. It was also not satisfied that the Applicant would be imputed with any LTTE connection on the basis of his ethnicity, prior residence, or his occupation[35].
[34] CB 265, at [39]-[40].
[35] CB 265-266, at [41].
The Authority did not accept that the Applicant faced serious harm due to having passed on information to the SLA in the past. The Authority accepted that the Applicant may have been suspected by other villagers of having passed on information to security authorities and shunned, but found that the Applicant had remained in the village for the six years he claimed to have been an informant, without having been harmed by the villagers. The Authority considered the possibility that the Applicant would be required to pass information on to the SLA in the future was remote[36].
[36] CB 266, at [42].
The Authority accepted that the Applicant would return to Sri Lanka as a failed asylum seeker, but, having summarised the country information[37], it was not satisfied that he would face a real chance of harm for this reason[38].
[37] CB 266-267, at [44]-[46].
[38] CB 267, at [47].
The Authority also found that the Applicant would be identified as having departed illegally and would be charged under the Immigrants and Emigrants Act (I&E Act). The Authority considered that the imposition of a fine or a surety (if seeking bail), or prison conditions during any brief period of detention, did not amount to serious harm[39] nor significant harm[40]. Furthermore, the Authority considered that the provisions of the I&E Act amounted to laws of general application which were not discriminatory and were not applied in a discriminatory manner[41].
[39] CB 266-268, at [44]-[45] and [48]-[49].
[40] CB 269, at [54].
[41] CB 268, at [49].
The Authority was not satisfied that the Applicant met the criterion under s.36(2)(a) of the Act[42].
[42] CB 268, at [50].
Relying on its earlier factual findings, the Authority was not satisfied that the Applicant’s circumstances, individually or cumulatively, gave rise to a real risk of significant harm[43]. At [54], the Authority further stated:
As to his treatment under the criminal justice system as a person who departed illegally and/or a failed asylum seeker, I accept that he will be detained at the airport for questioning and security and character checks. He may be charged with an offence under the I&E Act because he departed Sri Lanka illegally. He may be remanded in custody for a short period either at the airport or at a prison, while waiting to be brought before a magistrate who will most likely quickly grant bail. For reasons discussed above, I do not accept that there are any particular aspects of the applicant’s profile that would result in his being detained for a longer period or subjected to interrogation that might give rise to significant harm. I do not accept that the process outlined above amounts to significant harm, or that the applicant would be exposed to significant harm during this process. Nor does the penalty likely to be imposed on the applicant, or the remand conditions he would most likely face, amount to any form of significant harm. I find that, to date, a custodial sentence has never been imposed on illegal returnees such as the applicant. I am not satisfied that there is a real risk that this applicant faces a custodial sentence. I am not satisfied that there is a real risk that the applicant will face torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, including as a result of conditions he may face during a short period in custody. I accept that conditions in prison or detention may be poor, but the evidence does not suggest that the applicant faces the death penalty or arbitrary deprivation of his life. The definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Act requires that any pain or suffering be intentionally inflicted on a person. Similarly, “degrading treatment or punishment” is defined to mean an act or omission that causes and is intended to cause extreme humiliation. I am not satisfied that any pain or suffering caused to the applicant by overcrowding and poor and insanitary conditions in prison or on remand would be intentionally inflicted, as required. Nor do I accept that severe overcrowding and poor conditions are intended to cause extreme humiliation.[44]
[43] CB 268, at [53].
[44] CB 269, at [54].
Accordingly, the Authority was not satisfied that the Applicant met the criteria in s.36(2)(aa) of the Act[45].
[45] CB 269, at [55].
The Authority affirmed the decision not to grant the Applicant the Visa.
Judicial Review Application
At the hearing of this matter, the Applicant’s lawyer advised the Court that he proposed to rely on a single ground of review that was contained in his written submissions filed 30 July 2018. The Minister received a copy of the submissions and the proposed amended ground, the morning of the hearing. While originally opposed by the Minister, the lawyer for the Minister indicated that there were some “live matters” that required addressing and the proposed ground was not “futile or bound to fail”.
The parties addressed the Court orally at the hearing on the proposed amended ground. The Court granted leave for the Applicant’s lawyer to file an amended application in the proper form reflecting the ground of review and gave the parties an opportunity to file further written submissions, if they wished to do so. On 3 August 2018, the Applicant’s lawyer filed the Amended Application containing the ground of review argued substantively at the hearing, however no further submissions were filed. The Minister filed the Minister’s Supplementary Submissions.
In the Amended Application, the sole ground of review is as follows:
That the Authority failed to give proper and realistic consideration to the information in the second Psychological Assessment dated 5 September 2016.
PARTICULARS
(a) The Authority accepted the diagnoses.
(b) The Authority did not reject the opinions.
(c) Although accepting the diagnoses, the Authority did no more than note that the history given to the report writer contained more inconsistencies.
(d) The report was not presented to the Authority with the intention of corroborating the applicant’s factual claims.
(e) The report was given to the Authority with the intention of explaining that the applicant had major problems with concentration, retention and memory and attention span.
Consideration
The basis of this ground focusses on the Assessment. Specifically, that the Authority did not properly consider the Assessment as an explanation for the inconsistencies. The Applicant refers to the following portions of the Assessment that are submitted to not have been considered properly:
He presented with deficits in his concentration, retention and memory and attention span which I believe were caused by posttraumatic stress symptoms, anxiety and depressed mood.[46]
[46] CB 248.
[…]
Based on this self report [the Applicant] qualifies for diagnosis in the following subscales
1) Major Depressive Disorder
2) Post-traumatic Stress Disorder
3) Panic Disorder
4) Psychosis
5) Agoraphobia
6) Social Phobia
7) Generalized Anxiety Disorder
8) Somatization Disorder[47]
[47] CB 249.
The Agent’s submission was that the Authority failed to have regard to the Assessment when considering the “very fine tooth comb” and “hair splitting” inconsistencies that the Authority relied upon to undermine the Applicant’s credibility and not accept his claims (in relation to the number of persons he witnessed being shot, the Applicant’s detention, the Applicant being an informer and the visits by the SLA to his family)[48]. While the Authority referred to the Applicant’s explanations for the inconsistencies, it was submitted that the Authority did not consider the Assessment in the way it “was clearly intended for it” to be considered - that is, to take into account the Applicant’s psychological disorders in dealing with the inconsistencies.
[48] CB 156-182.
The Minister submitted that the context in which the Assessment was put to the Authority was important. Here, it was not put to the Authority as an explanation for any inconsistencies. Further, the Authority did consider the effect of the psychological conditions, however, it was not satisfied that they explained the discrepancies.
As the Minister submitted, the context in which the Assessment was presented is important. No context was provided by the Applicant’s migration agent about what the Assessment was purporting to demonstrate. It was simply provided to the Authority without comment.
Other materials that the Applicant’s migration agent provided to the Authority were directed to addressing the inconsistencies of the Applicant’s evidence. Notably, the Statutory Declaration explained the reason for the inconsistencies in his evidence about the shooting incident to be because, at the entry interview, he was very confused about the process as it was his first interview in Australia and the interpreter was rude[49] and the inconsistency may have been as a result of “poor translation”[50]. In the Agent’s Submissions, it was stated:
The delegate also made an adverse credibility finding on the basis the applicant did not reveal certain important information at the previous interviews which we believe was unreasonable in the specific circumstances of this case. The applicant has dealt with this issue in the accompanied statutory declaration.[51]
(Without alteration)
[49] CB 236, at [2].
[50] CB 236, at [3].
[51] CB 238.
Further in the Agent’s Submissions, and after stating that the Applicant was a refugee, in the final sentence, the Applicant’s migration agent wrote:
We also enclose a copy of a psychological assessment of the applicant by Purpose Driven.[52]
[52] CB 239.
The Applicant submits that the “context” of all of the materials clearly indicated that it was intended to explain inconsistencies. The Court does not agree. As noted, the Statutory Declaration made no mention of the Applicant’s psychological issues or poor memory. The Agent’s Submissions stated that the adverse credibility findings were “dealt with” in the Statutory Declaration, which did not refer to any psychological condition. Further, the “context” of the submissions was not limited to the inconsistencies. The Agent’s Submissions also referred to the Applicant’s claim to be a Tamil from Jaffna, who was previously identified as an LTTE supporter and the country information provided supported the assertion that someone of his profile would be harmed. Hence, the context of the materials submitted was not restricted to credibility and it was certainly not clearly articulated to the Authority that the Applicant’s psychological conditions were a cause of any inconsistencies.
In the absence of any submission or reliance on the Assessment for the purpose of explaining inconsistencies, it was a matter for the Authority to determine what weight and use it would give to the Assessment. It was not for the Authority to hypothesise as to the extent to which the Applicant’s psychological conditions inhibited his capacity to provide evidence in circumstances, where the Applicant did not advance a case to this effect. The Authority was entitled to give such weight as it felt necessary to the Assessment to determine whether it was satisfied that the psychological conditions explained what was described as “significant discrepancies”, and anything else that arose from the Assessment[53].
[53] SZORG v Minister for Immigration & Citizenship [2011] FCA 647, at [44]
While it was open for the Authority to use and apply the Assessment as it felt appropriate, the Applicant claims that the Authority only relied on the Assessment for the purpose of determining whether the Assessment corroborated the Applicant’s claims. It is true that the Authority made reference to the fact that the Assessment provided a further inconsistent account of the Applicant’s claims and did not accept the Assessment as independent corroboration of the Applicant’s claims, or as evidence of the circumstances which led to the Applicant’s conditions[54]. However, it is apparent, when read as a whole, that the Authority did not only consider the Assessment in this context.
[54] CB 261, at [24].
The Authority’s reasons for accepting that the Assessment met s.473DD of the Act, are of particular note. Those reasons were as follows:
7.On 6 September 2016 the applicant provided a further report, dated 3 September 2016, from the treating psychologist, [omitted]. This letter reports a further three visits by the applicant, all after the delegate’s decision, in addition to those in 2014 which were noted in the earlier report. It is not apparent why an updated psychological report could not have been provided prior to the delegate’s decision, although it is possible that the applicant needed to visit his psychologist on further occasions because of the refusal of his protection application. Because the information is from the applicant’s treating psychologist and is relevant to his capacity to provide information about his circumstances, I am satisfied that the information in the report is credible personal information which was not previously known and, had it been known, may have affected the consideration of his claims. Because of what the report reveals about the applicant’s psychological condition I am satisfied that there are exceptional circumstances which justify its consideration.[55]
(Emphasis added)
[55] CB 258, at [7].
It is apparent from those portions emphasised above that the Authority clearly appreciated the Assessment was relevant to the Applicant’s “capacity”. That is, his ability to provide information, and therefore the reliability of that information.
The Authority again refers to the Assessment at [24]-[25] as follows:
24. I accept that the applicant is not well educated, although he states that he attended school for nine years and it is not evident that he is illiterate, as his representative submitted at the SHEV interview. I accept that he and his family suffered displacement as a result of the war and that as a resident of Jaffna, he probably witnessed traumatic events over the war years. I accept that, as noted in the psychological report, he suffers from depression, anxiety and a range of other psychological conditions which have resulted in “deficits in his concentration, retention and memory and attention span”. I also note, however, that the psychologist’s report itself contains discrepancies as to the applicant’s circumstances - for example, it states that the applicant’s father was killed by the army, whereas he stated in his application that his father died of natural causes; the report also indicates that three of the applicant’s brothers have fled - one to India, one to Switzerland and one whose whereabouts is unknown, whereas in the information provided to the Department he indicates that only two brothers have left. While I accept the diagnosis, I do not accept the report as independent corroboration of the applicant’s claims, or as evidence of the circumstances which led to the applicant’s conditions. I accept that the applicant’s circumstances in Australia have been difficult, although he has had the benefit of legal representation in relation to both his 2013 protection visa application and his SHEV application.
25. I have taken these factors into account in assessing the applicant’s claims, but consider that much of his evidence is, at best, unreliable, and I do not accept many of his claims.[56]
[56] CB 261.
Again, when read as a whole (and with the Authority’s acknowledgment at [7] that the Assessment was relevant to the “capacity to provide information”), it is apparent that the Authority has not confined its use of the Assessment to determining whether it corroborated the Applicant’s claims. So much is apparent from the Authority using the phrase “I also note”. This indicates that consideration of the Assessment as a further inconsistency in the Applicant’s account was an additional observation. When read with the previous sentence, it is apparent that the Authority had turned its mind to the Applicant’s psychological conditions and resulting deficits, and at [25], this was one of the “factors” that the Authority assessed.
The Applicant’s reliance on SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403 is not applicable to these circumstances. The Authority did not overlook a substantial and clearly articulated argument that arose from the Assessment. Rather, it had regard to the Assessment, including the effect of the conditions of the Applicant, and when assessed as a whole, in light of all the other circumstances, was still not satisfied that the Applicant was “reliable”.
It was open to the Authority to do so in circumstances where the Applicant “had the benefit of legal representation” at the time the inconsistencies arose and because of the nature of the inconsistencies as “significant discrepancies” such that the Applicant’s psychological condition could not adequately explain them.
The Authority did not fail to give the Assessment proper, genuine and realistic consideration. It gave the Assessment the requisite consideration that was necessary in absence of any proper basis or explanation for what purpose the Assessment was provided. The Authority considered the Assessment at its highest, and made findings in light of the Assessment, as it was entitled to do in its fact-finding function.
The sole ground of review is dismissed.
Conclusion
The Applicant has not established that the Authority erred as pleaded in the sole ground of review.
The Applicant’s application is dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 27 May 2020
0
2
2