DKN17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 560
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DKN17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 560
File number(s): SYG 2409 of 2017 Judgment of: JUDGE LAING Date of judgment: 13 July 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority not to grant a Safe Haven Enterprise (Class XE) (subclass 790) visa – factual error – whether Authority failed to consider disclaimer in applicant’s statement – whether Authority erred in failing to consider possibility that the applicant would continue to express political views on social media on return to Sri Lanka – whether contended errors by the Authority occurred and were material – application allowed Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593
ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227
CEL17 v Minister for Immigration & Anor [2021] FCCA 1064
CLE19 v Minister for Home Affairs & Anor [2020] FCCA 1110; 351 FLR 409
COZ16 v Minister for Immigration and Border Protection [2018] FCA 46
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562
VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 11
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 6 June 2022 Counsel for the Applicant: Ms F McNeil Solicitor for the Applicant: Rasan T. Selliah & Associates Counsel for the First Respondent: Ms S Lloyd Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 2409 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DKN17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
13 JULY 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue bringing the decision of the second respondent dated 30 June 2017 in file number IAA16/01489 affirming the decision of a delegate of the first respondent not to grant the applicant a protection visa (original decision) into this Court and quashing it.
2.A writ of mandamus issue directing the second respondent to re-determine the applicant’s application to it for review of the original decision according to law.
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 LAING
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
BACKGROUND
The applicant in these proceedings is a citizen of Sri Lanka who arrived in Australia by boat on 10 October 2012.
On 29 February 2016, the applicant applied for the protection visa. The applicant attended an interview scheduled by the Department of Immigration and Border Protection (as it was) on 1 June 2016 (the interview).
On 25 November 2016, the Delegate refused the applicant’s protection visa application. The application was referred to the IAA on 30 November 2016.
On 30 June 2017, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA observed that an updated Country Information report on Sri Lanka had been published by the Department of Foreign Affairs and Trade after the Delegate’s decision. The IAA was satisfied exceptional circumstances justified consideration of this new information (at [4]).
The IAA accepted that the applicant was a Hindu, Tamil, Sri Lankan national from the Batticaloa District in the Eastern Province of Sri Lanka, and of the age that he claimed (at [8]-[9]).
The IAA accepted that the applicant’s parents and older siblings were not involved with the Liberation Tigers of Tamil Eelam (LTTE) but had been compelled to provide them with assistance when they resided in Naval Kadu. The IAA accepted that the applicant witnessed his brother’s abduction in 2000 and that his father had gone missing three months later (at [11]-[12]). However, the IAA did not accept that these events gave rise to a real chance that the applicant would be subjected to harm, noting the lack of enquiries made to the family by the authorities or paramilitary groups and that the identity of the perpetrators could not be confirmed (at [13]).
The IAA accepted that the family were harassed, threatened and intimidated to provide money and payment for fuel to paramilitary groups over a couple of years from 2006, but did not accept that they were singled out as supporters of the LTTE. The IAA noted the applicant’s claims that other families in the village had been subjected to similar demands, and concluded that the paramilitary groups were instead motivated by financial gain, opportunism and the ability to act in this manner with impunity (at [15]).
The IAA briefly outlined the applicant’s schooling and employment history between 2007 and 2011, noting that the applicant had “a number of encounters” with the Sri Lankan government around this period when obtaining official documents in the course of which he was never questioned, mistreated or detained by the authorities on suspicion of having been involved with the LTTE. The IAA therefore considered that the applicant did not hold a profile with the Sri Lankan authorities for being affiliated with the LTTE, and that he was not of specific interest to paramilitary groups (at [16]-[17]).
The IAA observed that the applicant had claimed that his brother had received phone calls querying the applicant’s whereabouts in 2012 and had been instructed that the applicant needed to meet an unidentified person at a specified place. The applicant claimed that his brother had failed to pass on the message and that shortly thereafter an attempt was made to abduct the applicant during which he was told, “When we told you to come, you did not come” (at [18]). While the IAA accepted that the applicant had made complaints to the police and the Human Rights Commission (HRC) in late April 2012, due to limitations in the documents he had provided the IAA did not accept that they corroborated the nature or details of the applicant’s complaints (at [19]).
The IAA considered that given its findings regarding the applicant’s profile, in the absence of any triggering event it had “considerable doubt” that he would have been targeted in the manner claimed. The IAA observed that the applicant had suggested at the interview that he had been targeted because he had witnessed his brother’s abduction, had failed to attend the meeting as demanded and also because he had worked as a bus conductor on his family’s buses (at [20]). In response to this, the IAA stated (at [21]):
21.I do not find this explanation plausible for the following reasons. The brother’s abduction had occurred twelve years earlier, had already been reported to police and the applicant’s inference that the same people were involved in both abductions given the passage of time, is highly speculative. It was only at the visa interview that the applicant claimed his brother had received a phone call from an unidentified person demanding the applicant attend at a specified place and had failed to pass on the message. Similarly, it was only at the visa interview that the applicant referred to the men in the van saying to him in Tamil, ‘We told you to come but you did not come’. I note that at the applicant was assisted with his statutory declaration attached to his visa application by a Tamil interpreter, the Tamil Resource Centre and the Refugee Advice & Casework Service. I consider that with this assistance, the applicant would have been advised about the importance of providing complete and accurate information about his claims for protection at the earliest opportunity. I also note that the applicant’s account in this respect to be inconsistent with an earlier statement during the interview that his brother only started to get phone calls about him after he had departed from Sri Lanka. Given the inconsistency of his evidence and that this material was not included as part of his visa application, I consider it to be a recent invention by the applicant to bolster his claims for protection. In terms of the applicant’s work as a bus conductor, his visa application reflects that he had only commenced this role in January 2012 and it consisted of collecting fares from the passengers. There is no information before me to indicate that the applicant was involved in making decisions about the hire of the buses or was involved in any specific altercations relating to his role as a bus conductor. Given the applicant’s duties and the duration of his employment, I do not accept that he held a role with his family’s business that was prominent or brought him to the adverse attention of the authorities or members of paramilitary groups.
Absent “any triggering incident or reason”, and considering the applicant’s personal circumstances, the IAA did “not consider it credible” that unidentified people would make arrangements to meet the applicant and then try and abduct him in the manner claimed. At [22], the IAA stated that it was “not satisfied that unidentified men contacted the applicant’s brother and attempted to abduct the applicant as he ha[d] claimed”. The IAA then went on to state (at [23]):
23.The applicant claimed as part of his visa application that following his attempted abduction he resided with his aunt who lived close to his family’s house in Batticaloa but in a busier area. I note that details in his visa application and provided during the entry interview relating to prior residence, do not reflect that he spent a period of time residing with his aunt. Given the inconsistency in the applicant’s account, I am not satisfied that he resided at his aunt’s address for safety following his claimed abduction.
The IAA outlined the applicant’s claims that in 2012 his family were targeted by paramilitary groups and their supporters for renting out buses to Tamil parties in the lead up to the election. The applicant also claimed that a bomb had been thrown at his family’s home the day after the election, causing damage (at [24]-[26]). The IAA accepted that the applicant’s family may have been subjected to some retaliation from Tamil Makkal Viduthalai Pulikal (TMVP) members and supporters over the use of their buses, but found that “this was directed at the family generally, and not to the applicant individually” (at [26]).
Given the IAA’s findings that the applicant’s brother had not previously received phone calls from men trying to contact the applicant, it also did not accept the applicant’s claim that his brother had received a call from people adversely interested in the applicant after the applicant had left Sri Lanka (at [27]).
The IAA accepted that given his family’s previous harassment, the applicant would be concerned about returning to Sri Lanka. However, country information indicated that white van abductions were now ‘very seldom reported’ and that the profile of paramilitary groups active in 2012 had changed. Subsequent elections had occurred relatively peacefully. Nearly five years had passed since the 2012 elections, and whilst it was possible that some members of the Karuna/Pillayan and TMVP still resided near the applicant’s village, the evidence did not suggest that the applicant’s family had been harassed or threatened by the Sri Lankan authorities or paramilitary groups since his departure from Sri Lanka (at [28]).
Based upon available country information, the IAA did not accept that the applicant would face a real chance of the relevant harm as a young Tamil man from the Eastern Province. Nor did the IAA accept that the applicant would be prevented from obtaining employment, or be unable to subsist, on return to Sri Lanka (at [29]-[30]).
At [31], the IAA expressed:
31.For reasons already stated, I do not consider he has a profile with the Sri Lankan authorities for actual or imputed support of the LTTE, or is considered to be a person of interest to members of paramilitary groups such as Karuna, Pillayan or the TMVP. Given the applicant’s profile and country information about the change in Sri Lanka’s political and security landscape and the reduced prominence of the Karuna Group, Pillayan Group and the TMVP, I am not satisfied that the applicant would be targeted by members of these groups on return to Sri Lanka. Given his family have continued to reside in the village and have not reported any harassment or further incidents by members of the Karuna, Pillayan or TMVP, I am satisfied that the intimidation faced by the family in 2012 would not resume on the applicant’s return to Sri Lanka, such that he would face a real chance of serious harm arising from his family’s business during the lead up to the 2012 elections.
The IAA assessed the applicant’s claims to face harm from the authorities because of anti-government sentiments he claimed to have published on social media since arriving in Australia. At [32], the IAA stated:
32.The applicant also claimed to have shared anti-government views on social media over a long period of time since being in Australia. During the visa interview, he stated that he had expressed views through his Facebook account that the government had attacked civilians during the war and the death toll for Tamils was higher than being claimed. The delegate, indicated in their reasons for decision that a thorough search had been undertaken on social media for the applicant’s account and any anti-government posts, but they had not been able to access any. Having regard to the difficulties experienced by the delegate in accessing any material posted by the applicant that is critical of the Sri Lankan government, I am not satisfied that the applicant would be at risk of serious harm on return due to remarks he may have shared on social media.
In concluding at [41] that the applicant would not face a real chance of serious harm, the IAA additionally stated:
41.… He has written anti-government comments on social media but this does not appear to be located or accessed…
For similar reasons, at [46] the IAA concluded that the applicant did not face a real chance of significant harm due to having shared anti-government comments on social media.
The IAA accepted that the applicant departed Sri Lanka illegally and would be identifiable as a failed asylum seeker. Country information indicated that this may result in him being detained for a short period of time. If pleading guilty, the most likely punishment would be a fine. The IAA found that the applicant’s treatment upon return would be pursuant to a non-discriminatory law of general application and would not give rise to a real chance of serious or significant harm (at [33]-[40] and [48]-[50]).
Having regard to the above, the IAA did not accept that the applicant was a person to whom protection obligations were owed. Accordingly, it affirmed the Delegate’s decision (at [41]-[51]).
PROCEEDINGS BEFORE THIS COURT
Proceedings were commenced in this Court by application filed on 31 July 2017. Prior to the hearing of the matter, an amended application was foreshadowed. Leave was granted at the hearing for the applicant to rely upon a variation of that document, without objection, on the basis that the applicant pay the Minister’s costs thrown away by reason of the late amendments. The grounds relied upon in the amended application, filed on 7 June 2022, were as follows:
Ground 1
The applicant claimed that in about April 2012 members of a paramilitary group tried to abduct the applicant. The Immigration Assessment Authority (“IAA”) found at [22] that “I am not satisfied that unidentified men contacted the applicant's brother and attempted to abduct the applicant as he has claimed”. The IAA fell into jurisdictional error in making this finding.
Particulars:
i)At paragraph 23 the IAA rejected the applicant's claim regarding the abduction attempt made against him because among other reasons, the Reviewer did not believe that the applicant following the attempt chose to reside with his aunt for safety. The IAA stated of this that “details in his visa application and provided during the entry interview relating to prior residence, do not reflect that he spent a period of time residing with his aunt.” However, the applicant clearly states within his statutory declaration at paragraph 21 that he only went “to my aunt's house after I finished working on the bus for the day.” Further, he states that “Late at night, I would then be dropped back at home to sleep”.
ii)One reason the IAA at [21] rejected the April 2012 abduction claim was because the applicant made some claims in his protection visa interview on I June 2016 which were not in his statement dated 24 February 2016 accompanying his protection visa application. The IAA overlooked an opening paragraph of the statement which stated “The following is a summary of my claims for protection. It is not an exhaustive statement of what has happed to me in the past ... I will provide further information in relation to my claims during any interview with the Department of Immigration.” This was a jurisdictional error.
iii)A further reason the IAA at [21] rejected the April 2012 abduction claim was because the IAA overlooked the following statement made by the applicant on 26 October 2012 in the Irregular Maritime Arrival Entry Interview (CB 119): “Q - what happened to you that made you leave? A - we were intimidated by phone”.
Ground 2
According to the IAA at [32), “the applicant claimed to have shared anti-government views on social media over a long period of time since being in Australia”. The IAA did not reject the applicant's claim that he posted anti-government views on social media. In circumstances where the applicant claimed to hold and publish anti-government views, a question is:
1.whether the applicant will continue to publish anti-government views if required to return to Sri Lanka; and
2.if so, whether the applicant faces a real chance of serious harm.
The IAA did not address these issues. This is a jurisdictional error.
Ground 1(i) – the applicant’s aunt’s residence
By this aspect of ground 1, the applicant contends that the IAA erred in rejecting his claims regarding the attempted abduction because it made an adverse credibility finding that was contingent upon a factual error in [23]. That paragraph of the IAA’s decision is extracted in full above. In it, the IAA considered that the applicant had given inconsistent evidence regarding a claim that he had resided with his aunt for safety reasons after the attempted abduction. Whilst the applicant had claimed that he attended his aunt’s house after work around that period, he had not claimed to have resided at that location. The inconsistency relied upon by the IAA at [23] was therefore based upon an incorrect factual premise.
In relation to this ground, Ms Lloyd for the Minister did not argue that the IAA’s construction of the applicant’s evidence regarding his aunt’s residence was correct. I accept that it was not.
Instead, Ms Lloyd submitted that this was immaterial to the IAA’s findings regarding the claimed abduction attempt. This was in circumstances where the IAA had given several reasons for rejecting the abduction claim at [21]-[22] of its decision. Those reasons did not include the IAA’s finding regarding its understanding of the applicant’s claim relating to his aunt’s residence. Ms Lloyd observed that the latter finding was made at [23], after the IAA’s finding at [22] rejecting the abduction claim.
I accept that there may be cases in which credibility findings may be said to have occurred within such a closed circuit capable of insulating them from otherwise defective reasoning. However, the difficulty for the Minister in this case is that the IAA’s reasons at [23] were relevant to, and capable of affecting, its findings that the abduction attempt had not occurred. Had the IAA accepted the applicant’s claim to have been attending his aunt’s house after work before returning home late at night due to concerns about his safety, then this would have corroborated his claimed reasons for being unsafe, i.e. the claimed abduction attempt.
Whilst the structure of the IAA’s reasoning was to reject the abduction claim at [21]-[22] and then to reject, for different credibility reasons, that he had been in hiding for his safety, the credibility of the latter claim was capable of affecting the credibility of the former. As was found in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]:
44.It is not realistic to put the various aspects of the appellant’s evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] “an assessment of credibility is not necessarily linear”. Put another way, although it is not accurate to say that the Hospital Evidence was minor, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 89, “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.”…
At the hearing of this matter, Ms Lloyd additionally submitted that the materiality was unable to be established due to the IAA’s reasoning at [28]. As summarised above, the IAA in that paragraph had regard to the changed situation in Sri Lanka, including the significantly changed role, profile and activities of paramilitary groups that had been active in 2012.
I am not persuaded by this. As set out above, the IAA relied upon reasoning that previous harassment by paramilitary groups had been “directed at the family generally, and not to the applicant individually” (at [26]). Whilst the IAA considered country information at [28] indicating that the situation in Sri Lanka including the profile of paramilitary groups had changed, it went on at [31] to articulate its reliance also upon its findings regarding the applicant’s profile. The IAA’s findings in this regard were informed by its rejection that the applicant had been specifically targeted for abduction in the manner claimed.
The IAA’s reasoning at [31] of its decision is extracted in full above. There, the IAA considered that “[g]iven the applicant’s profile and” (emphasis added) country information about the changed situation in Sri Lanka including about the “reduced prominence” of paramilitary groups, it was “not satisfied that the applicant would be targeted by members of these groups on return to Sri Lanka”. The IAA therefore expressly relied upon its findings regarding the applicant’s profile in addition to its findings regarding the updated country information. Those findings were capable of being affected by the IAA’s findings regarding the abduction attempt.
I therefore accept that that the IAA’s error in [23] was material to its decision and that jurisdictional error has been established on this basis.
Ground 1(ii) – the disclaimer
This aspect of ground 1 contends that the IAA overlooked the paragraph atop the applicant’s 2016 statement expressing:
The following is a summary of my claims for protection. It is not an exhaustive statement of what has happened to me in the past or the reasons why I cannot return to my country of origin. I will provide further information in relation to my claims during any interview with the Department of Immigration.
This was in circumstances where, in rejecting the applicant’s claims regarding the attempted abduction, the IAA relied upon the applicant’s failure to refer to certain aspects of his claims before the interview with the Department (at [21]). In particular, the applicant was found to have omitted reference in his earlier evidence to the following:
(a)his claim at the interview that his brother had received a phone call from an unidentified person demanding that the applicant attend at a specified place and time, but had failed to pass on the message; and
(b)his claim during the interview that men in the van had said to him in Tamil, “We told you to come but you did not come”.
Similar disclaimers to that relied upon under this ground have been considered in other cases. In AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 (AVQ15), the Tribunal made findings regarding what it considered to be various inconsistencies in the applicant’s evidence. In doing so, it was found to have overlooked relevant evidence regarding what had occurred at a departmental interview as well as a paragraph in the applicant’s statutory declaration stating that it was not intended to be “an exhaustive statement” of his claims, and that he intended to provide further information at interview. The Court stated (inter alia):
26.Consistently with its task on review, and bearing the reality to which the Full Court in W375/01A referred steadily in mind, appropriate attention has to be given by a decision-maker (here, the Tribunal) to all relevant material in making a finding of inconsistency which then underpins an adverse credibility assessment. As will shortly emerge, this did not occur here because the Tribunal overlooked what the appellant had earlier told a Departmental officer at the appellant’s interview and this material was highly relevant to the question whether the appellant had given inconsistent evidence in support of his case…
29.…As the following analysis reveals, the Tribunal’s finding of inconsistencies in the appellant’s evidence, which findings underpinned its adverse assessment of the appellant’s credibility, overlooked significant information which was before it and which potentially put a different light on those findings. This information is recorded in the first paragraph of the appellant’s statutory declaration and in the written transcript of the appellant’s earlier interview with the Departmental officer, a copy of which was before the Tribunal. Inexplicably, in its reasons for decision the Tribunal made no express reference to the transcript of interview. This was notwithstanding that the appellant declared in his statutory declaration that he would provide further information to the Department in support of his case.
48.We are satisfied that the Tribunal’s decision is affected by jurisdictional error and the primary judge erred in not upholding ground 1 of the amended application for judicial review. The Tribunal’s apparent overlooking of material in the form of the transcript of the appellant’s interview with the Departmental officer could also be characterised as a constructive failure to exercise jurisdiction (see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [80] ff per Gaudron J; VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [68]-[77] per Hill, Sundberg and Stone JJ and COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 at [38]-[46] per Griffiths J). That is because, in assessing whether or not there were inconsistencies between the appellant’s written and oral claims, it was incumbent upon the Tribunal to consider relevant parts of that transcript, which it failed to do. The appellant had, after all, made clear in his original statutory declaration that he would expand upon his claims in that interview. Further, in any situation where an applicant is given an opportunity to attend an interview or engage in a review process, it is reasonable for that applicant to expect that she or he will be able to expand on, or explain, aspects of the narrative she or he has given prior to that point. This expectation and the other matters to which we previously referred (see [24]-[26] above) must be properly considered by a decision-maker in making any assessment of the applicant’s claims and evidence.
The applicant observed that AVQ15 has been applied in other cases, including ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [42]-[45]).
There are still other cases in which the emphasis attributed to a disclaimer by an applicant has not been accepted on the facts: see for example CEL17 v Minister for Immigration & Anor [2021] FCCA 1064.
The Minister sought to distinguish AVQ15 by submitting that in that case, critical to the outcome was the additional evidence that was overlooked by the Tribunal from the interview with the Department. I accept that such a feature is not present in this case. In this case, the IAA was concerned that the additional aspects of the applicant’s claims had not been raised by the time of the interview, rather than at a subsequent hearing.
I note that a similar argument was rejected in CLE19 v Minister for Home Affairs & Anor [2020] FCCA 1110; 351 FLR 409. In that case, the Court considered that the failure to consider the disclaimer or qualification and the failure to consider the transcript of interview in AVQ15 had both been bases for judicial review (at [29]-[34]). The Court further considered that “the underlying reasoning in AVQ15 leads to a requirement that the decision-maker have regard to the true nature of the evidence that they are considering (and in this context the rider placed upon the brief information given in the written statement) before making determinations” (at [32]).
Ultimately, however, the inference as to whether material has been overlooked and, if so, the consequences of this must depend upon the facts and circumstances of each case.
In the present case, the significance of the aspects of the claims relied upon by the applicant for the first time at interview might be thought to tend against an inference that the disclaimer was overlooked. The more glaring the omission, the less likely that it may have been considered a mere elaboration of the applicant’s claims in the manner contemplated in the disclaimer. Non-reference to the disclaimer in such circumstances would not necessarily found an inference that the disclaimer had been overlooked. It may be accepted that the IAA was not obliged to refer to every aspect of the evidence that was before it and that a lack of reference will not necessarily result in an inference that it was not considered: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]; AVQ15 at [41(e)].
I accept that the aspects of the abduction claim raised for the first time at interview may have been characterised as details, or an elaboration of that claim. However, I also accept that they were important details that substantially changed the nature of the claim as originally portrayed.
That said, in the present case the lack of any reference to the disclaimer additionally stands in some contrast to the IAA’s express reliance upon its consideration that “the applicant would have been advised” by his particular advisers “about the importance of providing complete and accurate information about his claims for protection at the earliest opportunity” (at [21]). I accept this was not necessarily inconsistent with the disclaimer, particularly considering the reasonably detailed nature of the statement provided. However, the disclaimer was centrally relevant evidence that tended against this consideration. This was because by the disclaimer, the applicant and those assisting him had communicated that the 2016 statement was not intended to be complete or “exhaustive” statement of the applicant’s claims.
Having regard to the above matters, on balance I am willing to draw the inference that the disclaimer was overlooked in the present case. The question then becomes the significance of this.
Had the IAA had regard to the disclaimer, it is possible that it would not have relied upon its consideration that the applicant would have been advised in the terms contemplated at [21]. This may have resulted in the IAA accepting that the additional aspects of the abduction claim referred to in the interview were an elaboration of his earlier claims in the manner contemplated by the disclaimer, rather than a recent invention. If this had occurred, it is possible that the IAA may have been less inclined to reject the credibility of the abduction claim. For the reasons considered in relation to ground 1(i) above, I have found that rejection of the abduction claim was relevantly material to the IAA’s decision.
I therefore accept that jurisdictional error has been additionally demonstrated by ground 1(ii).
Ground 1(iii) – the Irregular Maritime Arrival Entry Interview
This aspect of ground 1 contends that the IAA overlooked the following evidence from the applicant’s Irregular Maritime Arrival Entry Interview in rejecting his abduction claim:
Q - what happened to you that made you leave?
A - we were intimidated by phone…
I accept that the IAA did not expressly refer to this evidence when considering the abduction claim. However, unlike ground 1(ii), I am not prepared to draw an inference that this aspect of the evidence was overlooked.
This is because in rejecting the abduction claim, the IAA was concerned with matters that had not been raised in the applicant’s 2016 statement or otherwise prior to his interview with the Department. The claim regarding being intimidated by phone was raised in the 2016 statement. There, the applicant had claimed at [17] that someone had called his brother asking where the applicant was and “the person on the phone sounded very authoritative and threatening”.
At [21], the IAA did not rely upon any failure by the applicant to mention a threatening call in his previous interactions with the Department. It relied upon the lack of prior reference to his subsequent claims at interview that (a) the person calling had demanded to meet with the applicant at a specified place; and (b) his assailants had then linked his failure to attend to his attempted abduction.
Given the above, it is not surprising that the IAA did not refer to this part of the evidence given during the applicant’s Irregular Maritime Arrival Entry Interview. This does not mean it was not considered. Additionally, given my findings above regarding the context of the IAA’s reasoning, it is difficult to see how any such error could realistically be said to have been material to the IAA’s decision.
It follows that I am not persuaded that this aspect of ground 1 ought to succeed.
At the hearing, Ms McNeil for the applicant additionally suggested that in assessing the applicant’s abduction claim, the IAA failed to consider documents provided to the Department in 2012 regarding complaints he had made to the police and the HRC. No separate ground, or aspect of any ground, has been pleaded in this regard.
In any event, I do not accept that this material was not considered by the IAA. The IAA considered the documents at [19] of its decision. It accepted, on the basis of the documents, that some kind of complaint had been made by the applicant to the police and the HRC in 2012. However, as the documents contained limited translated information, the IAA did not accept that they corroborated the nature or details of the applicant’s complaints.
The IAA was not obliged to find, as was suggested by Ms McNeil, that the documents may have provided an explanation as to why the applicant had not provided further details in his statutory declaration. The omitted details do not appear in the translated parts of the documents. The IAA was not prepared to accept that the untranslated parts corroborated the details of the applicant’s complaints. It was accordingly open to the IAA not to have adopted the reasoning path suggested by Ms McNeil. To find otherwise would transgress into merits review.
Ground 2 – the social media claim
By ground 2, the applicant contends that the IAA failed to consider whether he would continue to publish anti-government views in Sri Lanka and, if so, whether this would give rise to a real chance of the relevant harm.
The IAA’s reasoning in this regard is set out in some detail above. Essentially, the IAA accepted that the applicant may have shared anti-government comments on social media but not in a way that was accessible. Given the lack of accessibility, the IAA was not persuaded that the applicant’s expression of political views gave rise to a real risk of harm.
I have little difficulty in accepting that a claim might be said to have clearly arisen to the effect that the applicant might continue (or wish to continue) to share political views in Sri Lanka as he had done in Australia. This was in circumstances where the IAA did not reject that the applicant possessed such views, and he had claimed to have shared them in this manner over a long period of time.
However, I do not accept that any claim was made or clearly arose to the effect that the applicant would express his views in a manner differently to how he claimed to have expressed them in Australia. Nor do I accept that a claim clearly arose to the effect that, due to the continued expression of his views on social media after leaving Australia, they would somehow be more likely to become accessible and/or known to the authorities.
The difficulty for the applicant is that the IAA did not accept that the applicant’s manner of expressing his political views on social media was accessible to the authorities. If the material posted on the applicant’s social media account(s) was not relevantly accessible, then it is difficult to see how the outcome of the review could have been different if the IAA had considered that material may be added to such accounts after the applicant’s return to Sri Lanka. There was no material before the IAA to support the suggestion made by Ms McNeil at hearing that the additional material may have been such as to have engaged the attention of the authorities or other groups in Sri Lanka. The applicant provided no evidence to indicate that the import of any future comment would differ from that which had been made in the past. The IAA did not accept that such previous comment would be relevantly accessible.
I am therefore not persuaded that there is a realistic possibility that the outcome could have been different if the IAA had additionally considered that the applicant may continue to express himself in this manner in Sri Lanka.
For these reasons, I am not persuaded that ground 2 ought to succeed.
CONCLUSION
I have found that the IAA’s decision is affected by jurisdictional error. The application before this Court therefore succeeds.
I will hear the parties in relation to costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 13 July 2022
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