DJJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1258

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1258

File number(s):

MLG 2447 of 2016

Judgment of:

JUDGE EGAN

Date of judgment:

8 June 2021

Catchwords:

MIGRATION – Application for protection visa – whether the Immigration Assessment Authority ought to have conducted an interview with the first applicant concerning claims not previously raised at either the time of the entry interview, the making of a statutory declaration, or the later holding of a TPV interview before a delegate of the Minister – adverse credibility findings made against the first applicant based on a consideration of all of the material before the Authority – no jurisdictional error established – application dismissed.    

Legislation:

Migration Act 1958 (Cth) ss 5H, 5J, 36, 46A, 473CB, 473DC, 473DB, 473DD.

Cases cited:

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair v BTW17 [2020] FCAFC 159.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.

AUS17 v Minister for Immigration and Border Protection & Anor (2020) 94 ALJR 1007.

CED15 v Minister for Immigration and Border Protection [2018] FCA 451.

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Number of paragraphs:

35

Date of last submission/s:

3 June 2021

Date of hearing:

3 June 2021

Place:

Brisbane

Counsel for the Applicants:

Mr Krohn

Solicitor for the Applicants:

Vrachnas & Co

Solicitor for the First Respondent:

Mr Cunynghame of Sparke Helmore

Second Respondent:

Submitting appearance save as to costs

ORDERS

MLG 2447 of 2016

BETWEEN:

DJJ16

First Applicant

DJK16

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	8 JUNE 2021

IT IS ORDERED THAT:

1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The Further Amended Application for Review filed on 23 March 2021 be dismissed.

3.The First Applicant pay the First Respondent’s costs of and incidental to the Application for Review, such costs to be agreed and failing agreement, to be taxed pursuant to the provisions of r. 21.11 of the Federal Circuit Court Rules 2001 (Cth).

REASONS FOR JUDGMENT

JUDGE EGAN:

1. The applicants are citizens of Sri Lanka who arrived in Australia as unauthorised maritime arrivals on 12 October 2012. The first applicant is the father of the second applicant.

2. Upon the lifting of the s. 46A bar, the first applicant applied for a Temporary Protection visa on 4 February 2016. In his capacity as the first applicant’s son, the second applicant applied for protection as a member of the first applicant’s family unit. The success of the second applicant’s visa application was dependent upon the success of the first applicant’s visa application.

3. On 22 March 2016, the first applicant attended a TPV interview with a delegate of the Minister. On 9 August 2016, the delegate refused to grant the visa.

4. On 16 August 2016, the decision was referred to the Immigration Assessment Authority (‘the Authority’) for review of the decision of the delegate.

5. On 2 September 2016, the first applicant sent further documentation to the Authority, being submissions and a medical report.

6. On 14 October 2016, the Authority affirmed the decision of the delegate not to grant the visa.

   Consideration of Reasons of the Authority

7. At [2] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary of the Department pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).

8. At [3] of its reasons, the Authority recorded that it had received a submission and further information on behalf of the applicants. The Authority recorded that it considered that such submission and further information did not constitute new information.  

9. At [9] of its reasons, the Authority recorded the first applicant’s claims as follows:

   ·     “He fears persecution by the Sri Lankan Army (SLA) and CID.

   ·     He believes he will be harmed because of his Tamil ethnicity; he lived in an area controlled by the Liberation Tigers of Tamil Eelam (LTTE) during the war; and he will be detained at the airport if returned to Sri Lanka.

   ·     He was beaten by the SLA in 1984 and they broke his leg. As a result he walked with a limp. During the war he worked in [name of place omitted], a LTTE area, and his family lived in [name of place omitted], a government controlled area, and he moved between the two areas regularly, so he was of adverse interest to the SLA and CID. His limp also brought him to the adverse attention of the SLA and CID. He was regularly stopped and questioned.

   ·     The CID visited his wife's house in 2014 and 2015 looking for him.”

   [name of places omitted]

10. At [28] – [29] of its reasons, the Authority duly recorded what constituted a person as a refugee, and what constituted a well-founded fear of persecution, respectively under ss. 5H and 5J of the Act.

11. At [66] – [67] of its reasons, the Authority recorded that Australia owed complimentary protection obligations in the event that it was found that as a necessary and foreseeable consequence of a person being removed from Australia to a receiving country, there was a real risk that the person would suffer significant harm as defined under s. 36(2A) of the Act.

    Grounds of Review

12. On 10 November 2016, the applicants filed an Originating Application for Review. On 23 March 2021, the applicants’ solicitors caused a Further Amended Application for Review to be filed, the grounds of which were as follows:

    “1. The Second Respondent (“the Authority”) fell into jurisdictional error in that it was unreasonable.

    Particulars

    (a)       (not relied upon)

    (b) The Authority was unreasonable in not seeking to get new information from the Applicants at an interview pursuant to section 473DC of the Migration Act 1958 (“the Act”), when the First Applicant had made the new claim, explained why he had not been able to given this information earlier, and asked for:

    “an opportunity to present my claims in person, and therefore the IAA should schedule an oral hearing.”

    (First Applicant’s Submission to the Authority, dated 2 September 2016, Court Book (“CB”) 151; Authority’s Decision and Reasons, [7], CB 160)

    The First Applicant’s explanation for not having made the new claim earlier was that he:

    “could not have provided the above information to the Department previously for the following reasons: a. Inadequate representation from my previous Migration Agent…b. insufficient interpretation during the interview with the Department….c. Ill-health during the processing of my protection visa application

    (First Applicant’s Submission to the Authority, dated 2 September 2016, CB 148-149.)

    (c) Further or in the alternative to particular (b), the Authority was unreasonable in rejecting the new claim as a fabrication without giving the Applicants the opportunity to give information about it at an interview. (Authority’s Decision and Reasons, [14], [18], CB 162)

    (d) The Authority found that:

    “The Department of Foreign Affairs and Trade (DFAT) assesses that there are credible reports of torture carried out by Sri Lankan security forces both during the war and in its aftermath, including its use to extract information and confessions from suspects.” (Authority’s Decision and Reasons, [16], CB 162; [40], CB 167)

    The Authority also said

    “I accept that the CID turned up Applicant l's wife's home in 2014 and again in 2015 looking for Applicant 1.”

    (Authority’s Decision and Reasons, [23], CB 163])

    The Authority also rejected the new claim as a fabrication without interviewing the First Applicant. (Authority’s Decision and Reasons, [14], [18], CB 162)

    The Authority said:

    “I accept an asylum seeker with actual or perceived links to the LTTE may be at risk of harm when processed at the airport.” (Authority’s Decision and Reasons, [53], CB 169-170)

    In these circumstances the Authority was unreasonable in finding that

    “I am not satisfied that there is a real chance that the applicants would face serious harm on return as failed Tamil asylum seekers” (Authority’s Decision and Reasons, [54], CB 170), or a real risk of significant harm. (Authority’s Decision and Reasons, [70]-[74], CB 172.)

    (e) The Authority found that the new claim was “capable of being believed” and “credible personal information.” (Authority’s Decision and Reasons, [6], CB 160) It was therefore unreasonable to find that “I am not satisfied there are exceptional circumstances that justify considering new information that might be obtained by way of an interview” (Authority’s Decision and Reasons, [7], CB 160), and to reject the new claim as a fabrication without affording the First Applicant an interview. (Authority’s Decision and Reasons, [14], [18], CB 162)

    2. The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.

    Particulars

    (a) The Authority said “I am not satisfied there are exceptional circumstances that justify considering new information that might be obtained by way of an interview” (Authority’s Decision and Reasons, [7], CB 160), but it was not open to the Authority to determine whether there were exceptional circumstances to consider new information (pursuant to section 473DD(a) of the Act) without having that new information first at interview (pursuant to section 473DC(3)(b) of the Act).

    (b) (not relied upon)

    3. The Authority fell into jurisdictional error in that it failed to consider relevant considerations including information.

    Particulars

    (a) In determining to reject the new claim as a fabrication, the Authority failed to consider with an actual intellectual engagement the First Applicant’s explanation for not making the new claim earlier. (Authority’s Decision and Reasons, [14], [18], CB 162)”

13. Ground 1(b) is a claim that the Authority was legally unreasonable by failing to interview the first applicant in the exercise of its powers under s. 473DC of the Act. Section 473DC is to be read in conjunction with s. 473DB. Such sections provided as follows:

    “473DB Immigration Assessment Authority to review decisions on the papers

    (1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

    (a)       without accepting or requesting new information; and

    (b)       without interviewing the referred applicant.

    (2)  Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

    Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).”

    Section 473DC – Getting new information

    (1)  Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

    (a)  were not before the Minister when the Minister made the decision under section 65; and

    (b)       the Authority considers may be relevant.

    (2)  The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

    (3)  Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a)       in writing; or

    (b)  at an interview, whether conducted in person, by telephone or in any other way.”

14. Recently, the Full Court of the Federal Court discussed the circumstances in which an Authority might exercise its power to get new information in the context of the legislative scheme in Part 7AA of the Act. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair v BTW17 [2020] FCAFC 159 at [64] – [76], Mortimer and Jackson JJ said:

    “[64] In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [22], the plurality described the “primary rule” applicable to the Authority’s review under Pt 7AA:

    Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE.

    [65] At [27], noting that it was possible for the Secretary, in the review material given to the Authority, to provide information that was not before the delegate, the plurality said:

    Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority’s obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.

    [66] In that context, the plurality then described s 473DD as imposing “restrictions on when the Authority can consider new information”: at [28]. That position, as the Minister correctly submitted on the appeal, reflects a policy decision articulated in the extrinsic material which introduced Pt 7AA to limit the circumstances in which the Authority can consider new information: see Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [909].

    [67] Having explained at [29] that the “exceptional circumstances” “precondition set out in s 473DD(a) must always be met”, the plurality then said of s 473DD(b) (at [34]):

    Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.

    (emphasis added)

    [68] Two matters should be noted about this passage, and the proper approach described by the plurality. First, what is contained in s 473DD is described as a “precondition”. That is, although it is part of the review function of the Authority, the exercise of power under s 473DD comes before the Authority can “consider new information that is given to it” by a referred applicant. It is thus part of the Authority’s preliminary decision-making about what is the complete scope of the material it will be considering on its review for the purpose of its statutory task, which is, as the plurality in Plaintiff M174 outlined at [17]:

    to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.

    [69] As the plurality observed at [32], the precondition in s 473DD(b)(i) needs “[n]o explication”. It is a matter of objective fact, and straightforward. It would be curious if the precondition in s 473DD(b)(ii) were not also treated as involving a relatively straightforward assessment, being, as we have explained, a preliminary step the Authority must take before settling on the scope of the material which is to be before it on its review, so that it can consider afresh the protection visa application, and make its own decision.

    [70] Thus, the parameters for the Authority’s review task are set by the “primary rule” in s 473DB, read with the additional powers conferred on it by ss 473DC, 473DD and 473DE. The purpose of each of those additional powers is the same: it is to regulate the circumstances in which the Authority can depart from the “primary rule” in s 473DB. In each case, in deciding whether or not to exercise those powers, the Authority is doing so for the purposes of deciding what should be the scope of the material available to it for its review task.

    [71] The precondition in s 473DD(b)(ii) is but one aspect of these powers, and the approach taken to its construction should reflect its purpose as we have described it. In substance, it is no different to the Authority deciding whether to invite a person to an interview under s 473DC(3)(b): in both cases, the Authority is deciding what material should be before it on its review.

    [72] Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant – in all these circumstances the Authority is entitled to reflect on and assess the review material already before it – but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions – in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.

    [73]However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own – fresh – consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.

    [74] As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.

    [75] That is why, in our opinion, Parliament has used the word “credible” in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.

    [76] Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.”
    
    (underlining added)
    
    
    

1. When considering what constituted legal unreasonableness, in the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76], Hayne, Kiefel, Bell JJ said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

2. When considering whether courts ought to interfere with the discretionary exercise of statutory power, Kiefel CJ said in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] and [11] as follows:

   “[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case.

   [11]Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”

   (footnotes omitted)

3. On 2 September 2016, the first applicant sent a four (4) page submission to the Authority together with a medical report from a doctor in general practice dated 30 August 2016. The new information in the submission was to the effect that on 21 August 2012, whilst being questioned in Sri Lanka by the CID concerning the first applicant’s possible membership of the LTTE, certain events took place. That submission, in part, was relevantly as follows: [1]

   [1]           Court Book (CB) p. 148.

   “1.      New information

   I wish to provide the IAA the following new information.

   On 21 August 2012 I was being questioned by the Sri Lanka CID about their suspicions that I was a member of the Tamil Tigers (LTTE). This took place in Vavuniya, in the CID Office. One of the CID members was a Tamil speaker and he told me that the CID intended to arrest me for being in the LTTE, that I would never be released from prison, and that I should leave Sri Lanka. I believed what he was saying was true. Under these circumstances I felt I had no choice but to leave the country.”

   The first applicant said that the above information concerning the 21 August 2012 alleged incident had not been previously provided to the department because of inadequate representation by his previous migration agent.

4. It was common ground that the first applicant did not raise the question of the alleged 21 August 2012 incident at the time of his entry interview conducted on 19 December 2012. In Part C of the documentation produced at the time of the entry interview, in response to the question “why did you leave your country of nationality (country of residence)?”, as well as a number of other questions, the first applicant replied as follows: [2]

   [2]           CB p. 12

   1. Why did you leave your country of nationality (country of residence)?

   In 05/08/1984 the police hit me on my legs in Oddusttan, the army broke my leg, because of the injuries on my legs they accused me of being a member of the LTTE.

   Q. What specifically happened to you at this time which prompted you to leave?

   Previously they broke my legs because they thought I was a member of the LTTE, they still harass me, and so I have come here to protect my life.

   Q. Who specifically did this, who is responsible for this?

   The Sri Lankan military and the CID.

   Q. When was the last time you had an encounter of this kind with them?

   On the 20/05/2012.

   Q. What happened?

   They stopped me on their motorbike and they asked for my ID and I said who are you, they said CID and asked me if I was from Oddusttan and I said yes. They asked me if I was an LTTE supporter and I said no, and they asked me if my leg injuries were because of an involvement with the LTTE and I said not, it was from the beating I had got at the police station.

   Q. Apart from what you have told me, are there any other reasons why you have left at this time?

   Apart from this reason, there are no other reasons why I have left at this time.”

   The Court has noted that it was only the 1984 and 20 May 2012 alleged incidents which were attributed by the first applicant as being the reasons why he left Sri Lanka.

5. As to the medical report annexed to the 2 September 2016 submission, such report in part addressed the first applicant’s medical condition at the time of the TPV interview conducted before the delegate on 22 March 2016. The report relevantly provided as follows: [3]

   “This is to state that [name omitted] is my patient since August 2013. [Name omitted] came as an asylum seeker by boat to Christmas Island in August 2012. He alleges torture and trauma by the Sri Lankan army. He was physical torture and beaten by iron rods leading to fracture of his left leg 1984. He says his uncle and his daughter was killed by bomb blast in Sri Lanka 2009. He says he was physically questioned by the Sri Lankan authorities in 2009 after the end of war and mentally and emotionally tortured and asked to admit his involvement as he had a deformity of his leg. He had to flea Sri Lanka in 2012 to avoid further persecution. His family of his wife and his daughter is being continually questioned by the authorities about his whereabouts and threatened.”

   (Names omitted)

   [3]           CB p. 152.

6. At [3] of its reasons, when referring to its receipt on 2 September 2016 of the first applicant’s submission and annexed medical report, the Authority recorded that the submission discussed evidence which was before the delegate, and otherwise responded to some of the delegate’s findings. The Authority’s written reasons, somewhat incongruously, recorded the following:

   “I consider this does not constitute new information and I have had regard to this material.”

   To the extent that the Authority made such last-mentioned finding, the Court infers that the Authority was meaning to say that it did not have regard to such submissions because they merely repeated what submissions had been made before the delegate. The Authority was entitled to so find.

7. At [4] and [5] of its reasons, when referring to the part of the submission which referenced the 21 August 2012 alleged incident, the Authority found that the material before it did not support the first applicant’s claims of inadequate representation and insufficient interpretation at the time of his appearance before the delegate. Based upon the lack of specificity relating to such claims in the 2 September 2016 submission, the Authority was entitled to so find.

8. At [6] of its reasons, the Authority dealt with the first applicant’s submission that his protection claims had not properly been assessed because of his having been adversely affected by the taking of strong pain relief medication at the time of the TPV interview on 22 March 2016. Reliance had been placed by the first applicant upon the contents of the 30 August 2016 medical report. The Authority apparently then proceeded to consider whether such claim of medical unfitness constituted new information for the purposes of s. 473DD of the Act. Section 473DD relevantly provided as follows:

   “473DD Considering new information in exceptional circumstances

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”

9. Paragraph 6 of the reasons of the Authority was as follows:

   “[6]Applicant 1 says his protection claims have not been properly assessed because he was unwell due to major orthopaedic surgery on his leg on 20 January 2016 which meant he was on very strong pain medication during his recovery including at the TPV interview. There is a letter from Applicant l's treating doctor that confirms his leg operation was on 20 January 2016 and that he was under the influence of strong opioid analgesics and other pain killers to relieve the pain. The doctor's letter states Applicant 1 attended an immigration interview on 22 March 2016 and was unable to present his case as he was under the influence of medication. The letter does not specify the medications involved, the dosage or the particular effects of the medications. The letter does not set out the basis for the doctor's view that Applicant 1 was unable to present his case at the interview or the level and nature of any impairment caused by the medication to his ability to participate in an interview. However, I am prepared to accept that his surgery on 20 January 2016 and recovery medication may have contributed in some way to Applicant 1 failing to mention the incident of 21 August 2012 at the TPV interview and prior to the delegate's decision. I am satisfied that there are exceptional circumstances to justify considering the new information concerning the incident on 21 August 2012; the doctor's letter and x-ray copy; and the factual clarifications. Turning to whether the new information is 'credible personal information', a matter which is capable of being believed is, consistent with the ordinary meaning of 'credible', one which is not inherently false or unbelievable. Whether such a matter is ultimately believed following any consideration and weighing of available evidence, is a separate issue. It does not require a finding that the new information concerning the 21 August 2012 incident, or his other factual clarifications, is factual. It simply requires a finding that there are no inherent, fundamental threshold reasons for it not to be believed and it is therefore capable of being believed. I am satisfied that the new information is credible personal information that may have affected the consideration of Applicant l's claims had it been known by the delegate, and therefore meets the requirements in s.473DD(b)(ii).”

10. In AUS17 v Minister for Immigration and Border Protection & Anor (2020) 94 ALJR 1007 at [11] it was held per Kiefel CJ, Gageler, Keane and Gordon JJ as follows:

    “[11]Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.”

11. It is unclear whether the Authority, in [6] of its reasons, first resorted to s. 473DD(b)(ii) or to s. 473DD(a) of the Act when considering its obligations under the section. Though having first mentioned the “exceptional circumstances” element of s. 473DD(a) in that paragraph, the Authority could very well have first addressed the “credible personal information” element of s. 473DD(b)(ii) in its considerations, albeit that it had referred to it secondly in the written paragraph. Nonetheless, having traversed each of the questions raised by each of (b)(ii) and (a) of s.473DD of the Act, the Court is satisfied that the Authority did duly consider such information newly presented on the question of the first applicant’s medical fitness to both appear before the delegate on 22 March 2016, and otherwise articulate clear arguments, at that time, in support of his claims. The Authority did so by saying, at [7] of its reasons, the following:

    [7]… Notwithstanding his attending the TPV interview while taking medication, based on the recording of the interview, Applicant 1 was engaged, focussed and articulate during the interview and asked relevant and logical follow up questions of his own when the occasion arose. He was asked about his claims and was given a number of opportunities by the delegate to expand or clarify, which he did. I note that he participated in a similar manner in his arrival interview on 19 December 2012. Based on his performance at his interviews, although he may have forgotten to mention the 21 August 2012 incident and some further clarifications, I am not satisfied that he was not given a proper opportunity to discuss his claims. Additionally, as discussed above he lodged his visa application, including a signed statutory declaration, in December 2015, prior to the January 2016 leg operation and subsequent medication.”

12. The Court finds that the above passage was the basis for the Authority considering, but rejecting, the first applicant’s claim that he was medically unfit to make submissions and present arguments on 22 March 2016 at the TPV interview. The Authority clearly had listened to the audio recording of that interview, and found that, like in the audio recording of the 19 December 2012 entry interview, the first applicant was “engaged, focused and articulate during the interview and asked relevant and logical follow up questions on his own when the occasion arose.” The Authority did not err in the manner in which it considered whether to accept or reject such claims.

13. Further, the first applicant had failed to refer in any way to the 21 August 2012 alleged incident in his statutory declaration of 22 December 2015. In the context of its contemporaneous consideration as to whether it ought to grant the first applicant’s request for the Authority to conduct an interview with him, as was set out in [7] of its reasons, the Authority was well aware of the fact that not only had the first applicant not raised the alleged 21 August 2012 incident at any time between December 2012 and September 2016, it also reasonably doubted the credibility of such new information relating to such incident. At [17] – [18] of its reasons, the Authority said as follows:

    [17]Having considered Applicant l's arrival interview, his statutory declaration of 22 December 2015, his evidence from the TPV interview and his new information, I have concerns about the truthfulness of some aspects of Applicant l's evidence.

    [18]In his 19 December 2012 arrival interview, when the particular events were relatively fresh, Applicant 1 said the last time he had an encounter with the SLA or CID was the road side incident of 20 May 2012 and made no mention of the 21 August 2012 incident, despite him now saying that was effectively the trigger for him deciding to flee Sri Lanka. In relation to the incident on 21 August 2012 Applicant 1 states that while in the Vavuniya CID office a Tamil speaking CID officer told him the CID intended to arrest him for being in the LTTE, he would never be released from prison and he should leave the country. It appears the CID, despite their stated intention of arresting and never releasing him, decided not to arrest him while he was in their office but allowed him to leave. The behaviour of the CID on 21 August 2012 as described by Applicant 1 is inexplicable. I reject the incident of 21 August 2012 as a fabrication.”

14. It is well accepted that the late making of a claim founds a basis for the making of an adverse credibility finding. As Thawley J said at [21] – [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:

    “[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:

    69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.

    70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.

    [22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.

    [23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. 

    [24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”

1. The finding by the Authority that the first applicant’s claim relating to the alleged 21 August 2012 incident was a fabrication was no more than the making of an adverse credibility finding against the first applicant, by the Authority, based upon a consideration of the material before it. The Authority made such finding having weighed up all of the evidence before it. The Authority was entitled to reject the first applicant’s request that it conduct an interview with him. The Authority did not err in the exercise of its discretion. The fact that the Authority, at [7] of its reasons, erroneously adopted the “exceptional circumstances” criteria when deciding not to exercise power under s. 473DC of the Act was of no moment. Its reasons for not exercising its discretion to conduct an interview were plainly set out by it, and those reasons did not reveal that the Authority had misdirected itself as to what it had to consider before exercising its discretion, and as to how it went about such task. In circumstances where its consideration of all of the facts before it was considered to warrant the making an adverse credibility finding against the first applicant on the very question which the first applicant wished to address at a face to face interview, no legislative purpose would have been served in the holding of such an interview. Further, the scheme of Part 7AA of the Act militated against the exercise of the Authority’s discretion in the first applicant’s favour. In such circumstances, the Authority was not required to conduct any such interview. There is no merit to such claim.

2. As to Ground 2(a) of the Further Amended Application for Review, there is no merit to such claim for the reasons advanced above. The Authority ought not to have its reasons so examined with an eye keenly attuned to error. As was said by The Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ at [46] – [47]:

   “[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   [47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

3. As to Ground 3 of the Further Amended Application for Review, there is no merit to such claim for the reasons advanced above. The Authority found that the first applicant’s history surrounding the 21 August 2012 alleged incident, and the alleged behaviour of the CID on that occasion, was “inexplicable”. That finding was made in the context of the Authority finding that the first applicant’s claim relating to such incident was a fabrication. The Authority had clearly intellectually engaged in a consideration of the merits of the first applicant’s claims, but had rejected them. The Authority did not err in the manner in which it relevantly made its findings.

4. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

5. The applicants have failed to establish jurisdictional error on the part of the Authority.

6. The Further Amended Application for Review is without merit and is dismissed.

7. The Court will hear the parties as to costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       8 June 2021