DLK18 v Minister for Home Affairs

[2020] FCCA 1200

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLK18 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 1200

Catchwords:
MIGRATION – Judicial Review – decision of Immigration Assessment Authority to refuse a Safe Haven Enterprise Visa – whether the Authority erred by unreasonably failing to consider the exercise of its discretion to obtain new information under s. 473DC of the Migration Act or by engaging in an illogical and unreasonable reasoning process – whether it was open to the Authority to be satisfied of the applicant’s “inability” to provide detail on the basis of a question and answer – whether the Authority has misapprehended the nature of the evidence given by the applicant – whether there has been serious error in the Authority’s adverse credibility assessment of the applicant– application allowed.

Legislation:  
Migration Act 1958 (Cth) ss.36(2)(aa), 473 DC.

BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196; [2019] HCA 34.
Associated Provincial Picture Houses Ltd v Wednesbury Corp (1947) 45 LGR 635; [1948] LJR 190; [1947] 2 All ER 680; (1947) 112 JP 55; [1948] 1 KB 223; (1947) 177 LT 641; (1947) 63 TLR 623.
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; (2018) 359 ALR 1; (2018) 92 ALJR 780; [2018] HCA 34.
Stead v State Government Insurance Commission (1986) 161 CLR 141; (1986) 11 ALN N80; (1986) 67 ALR 21; (1986) 60 ALJR 662; (1986) 4 MVR 542; [1986] HCA 54.

Applicant: DLK18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 262 of 2018

Judgment of: Judge Young

Hearing date: 28 April 2020

Date of Last Submission: 28 April 2020

Delivered at: Darwin

Delivered on: 28 April 2020

REPRESENTATION

Counsel for the Applicant: Mr J. Marcus

Solicitors for the Applicant: Beena Rezaee Legal & Migration

Counsel for the First Respondent: Ms J. Battiste

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 31 May 2018.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 2 August 2017.  

3. The applicant is to file a written submission in relation to the question of costs within 7 days.

4. The first respondent is to file a written submission in relation to the question of costs within 7 days of receipt of the applicant’s written submission. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DARWIN

ADG 262 of 2018

DLK18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 31 May 2018.  The Authority affirmed a decision of the delegate made on 2 August 2017 to refuse the applicant a Safe Haven Enterprise Visa. 

3. The two grounds of review included in the amended application are as follows, and I will summarise the grounds rather than reading them in their entirety. In ground 1 it is alleged that the Authority failed to exercise its jurisdiction to conduct a review by unreasonably failing to consider the exercise of its discretion to obtain the information under section 473DC of the Migration Act (“the Act”).

4. The particular complaint is that the Authority’s determinative conclusion that the applicant’s claim so lacked detail that he ought not be believed necessitated the Tribunal, if it were acting reasonably, to seek to get further information from the applicant in order to provide detail if any were available.  It was suggested that the failure to consider the exercise of discretion to get information was unreasonable. 

5. It appears to me that the decision of the High Court in BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196; [2019] HCA 34 is an insuperable obstacle to that argument. As the High Court said in BVD17, the Tribunal is not under an obligation to provide reasons for a decision to exercise a discretion or not to exercise a discretion to get information under section 473DC. Therefore the absence of reasons in the Tribunal’s reasons for a decision cannot lead to an inference that it failed to consider the exercise of the discretion.

6. In circumstances where the applicant has the onus of establishing that the Tribunal failed to consider the exercise of that discretion it seems to me that he is in a position of having no evidence from which to draw an inference one way or another. 

7. Mr Marcus, as counsel for the applicant, adopted the position that in all the circumstances this was a case of Wednesbury style unreasonableness where the result of the decision was so outside the realm of reasonable outcomes that regardless of the precise chain of reasoning that led the Tribunal to not seek to get new information it must have acted unreasonably.  In my view the submission that the Tribunal’s failure to get new information or seek to get new information was so outside the realm of reasonable or possible outcomes that the Tribunal must have acted unreasonably is one that is not borne out by the evidence or by a consideration of the facts and background of this case.

8. I am satisfied that given the lack of detail in the applicant’s claims over some time, particularly in his entry interview, his statutory declaration made in support of his visa application and the lack of detail in his interview with the delegate, that the Authority was, in those circumstances, not obliged to provide the applicant with an opportunity to fill in gaps in the information he had provided.  Of course it was open to the Tribunal to decide to do so but its failure in those circumstances was not unreasonable.  Ground 1 is not made out.

9. Ground 2 of the application is that the Authority failed to exercise its jurisdiction to conduct a review by engaging in an illogical and unreasonable reasoning process.  Four particulars are provided.  The first is an allegation that the Authority rejected the applicant’s claim that it was “unbelievable” that a Hazara kickboxer could beat a Pashtun kickboxer as the applicant provided no evidence of this.  In my view that claim does not accurately characterise the reasoning of the Authority and indeed the Authority at no point described the applicant as claiming that it was unbelievable that a Hazara kickboxer could beat a Pashtun kickboxer.

10. The applicant himself used the word, through an interpreter, that it was “unbelievable” to the Pashtun kickboxer that he be beaten by a Hazara, but that appears to me to be quite a different notion.

11. Particular 2.3 of ground 2, is an allegation regarding the Authority’s finding, or conclusion, about the lack of threats to the applicant during a short period of 35 days when he returned, or was deported from Malaysia, to Afghanistan, and before he left again for Australia.  The Authority found the absence of any threats in that period was not supportive of the applicant’s allegations of him being subject to threats.  The Authority’s conclusion which, in my view, amounts to no more than a statement that the absence of threats was consistent with the applicant’s comments not being true, was weakly probative at best.  However it was a finding that was open to the Authority, though it was not one that was, for reasons which I will turn to, ultimately determinative. 

12. Particular 2.4 of ground 2 is an allegation that the Authority did not “engage” with aspects of the applicant’s claim consistent with his claim of threats from an opposing kickboxer and his supporters.  It is claimed the Authority merely listed the reasons it disbelieved the applicant and in doing so engaged in a “quest for disbelief”.  On the facts of this case, I think that particular amounts to no more than a rhetorical flourish indicating disagreement with the Authority’s conclusion and, as articulated by Mr Marcus, I do not consider it amounts to a recognised ground of jurisdictional error.

13. That brings me back to particular 2.2 of ground 2 which reads as follows:

    The Immigration Assessment Authority found the applicant was unable to describe threats in response to a question in his Safe Haven Enterprise Visa interview.  There was no such question asked. 

14. Before turning to a consideration of that claim I should say something about the background to the matter.  The applicant is a citizen of Afghanistan.  He is of Hazara ethnicity and adherent to the Shia sect of Islam.  He was born outside Kabul but spent, it appears, most of his childhood and youth growing up in Kabul with his parents.  At an early age, he said around about 12 or 13, he developed an interest in kickboxing and became very proficient at kickboxing.  At age 17 he said that he was selected as a member of the Afghan national team and was invited to travel to Turkey where he competed in an international competition.  He continued to engage in the sport until his departure for Australia in 2012 or 2013. 

15. He said that in one of the competitions he was against an opponent of Pashtun ethnicity.  This Pashtun kickboxer had been an Afghan champion and had been very popular among his supporters who it was implied, at least in the claim, were also of Pashtun ethnicity.  The applicant said that when he met the Pashtun competitor in a competition it had incited ethnic rivalry and hatred.  He said that in the stadium after his win a supporter of the Pashtun kickboxer drew a pistol and fired shots in the air.  The applicant said that he was taken away from the stadium by the police and went home.  He said that subsequently he received further threats, including death threats, from the Pashtun kickboxer and his supporters. 

16. The claims of subsequent threats appeared to lack detail.  There was no detailed description of the threats, including: who made them; when they were made; the circumstances of when they were made; what was the content of the threat; and how often such threats were made.  None of that was mentioned by the applicant at any point during the process of his application for a visa.  His entry interview, apart from providing detail about the incident at the stadium, was vague about any further threats.  His statutory declaration, again, while it provided some detail about the incident at the stadium, was vague about the nature, content and source of any subsequent threats against him.  Similarly, the transcript of the interview before the delegate, which was put into evidence, was also somewhat vague about the nature of the threats, other than the stadium incident.

17. The delegate approached these claims in the following way.  The delegate accepted that the applicant was a credible person and generally accepted his claims about the incident at the stadium, though, the delegate observed that other aspects of the applicant’s claims were exaggerated or embellished but generally the credibility of the applicant was accepted in relation to some or all of the threats he alleged were made against him.

18. The delegate concluded that the applicant did not engage Australia’s refugee obligations because the nature of the claims he made was not to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.  The delegate was not satisfied that the threats made were on a convention ground.

19. The delegate also considered the complementary protection obligations under section 36(2)(aa) of the Act. The delegate found that, while the threats had been made in approximately 2012, the fact that many years had passed while the applicant was outside the country meant that there was no real chance of significant harm should the applicant be returned to Afghanistan. In other words he was not subject to an obligation of complementary protection and therefore the application was rejected.

20. The Authority took a somewhat different view.  The Authority did not accept that the applicant was a credible person in relation to his claims in any sense.  The applicant was not satisfied that there had been an incident at the kickboxing stadium where shots were fired into the air and the Authority was not satisfied that any threats had been made against the applicant then or at any later time.

21. The Authority’s process of reasoning is set out at paragraph 17 of the reasons as follows:

    The delegate asked the applicant what sort of threats he received subsequent to the kickboxing competition where he beat the Pashtun boxer in 2012.  He stated that they threatened they would kill him wherever they find him.  However the applicant was unable to specify how these threats were received, how often, when the last threat was received, and what the nature of the threats were.  I find the applicant’s lack of detail in response to this question and inability to describe in detail the claimed threats, leads me to seriously doubt the credibility of the applicant’s claim, that he was threatened by his kickboxing opponent and supporters…

22. The Authority pointed to no other basis for doubting the credibility of the applicant’s claims other than what is referred to in that passage.  It is noteworthy that the reason for rejecting the applicant as a credible person was in relation to one question and one answer.  It is worth reading the question and the answer that the Authority referred to.  This appears at page 30, line 39, and I will use the initial F for the name of the other kickboxer:

    All right.  And so what sort of threats did you receive from F and his supporters?  How did they threaten you?

    The applicant answered through an interpreter:

    They threatened that – they threatened that, “I will kill you”, um, “Wherever I find you I will kill you”.   That’s when I left the country.

23. Counsel for the applicant described the Authority’s reasons as “a gross mischaracterisation” of the evidence.  I don’t necessarily accept that description but the use of the word “inability” in the passage that I quoted is, to my mind, significant.  The word “inability”, depending on which dictionary one refers to and I have referred to the Concise Macquarie and the Australian Oxford, in its related form “unable” is defined in the Macquarie as:

    An adjective.  Not able (to do something); lacking ability or power (to do something).

    And in the Australian Oxford it is defined as:

    Not able; lacking ability.

24. If the word “inability” is used according to its literal meaning, it leads to the conclusion that the question and answer (or the Authority’s understanding of that question and answer because it is not apparent that the transcript was before the Authority and the Authority may have simply listened to the recording of the interview) was the basis for the Authority’s conclusion that the applicant was not able to provide any further detail or had no power or ability to do so.  That is, it was impossible for him to do so. 

25. In my view the question and the answer, taken alone, are not sufficient to permit that inference.  Ms Battiste for the respondent said the question was in substance an invitation to elaborate.  Perhaps it was intended as an invitation to elaborate but the applicant’s answer which was, in essence, that there was a threat to kill him wherever he might be found, was not followed up by a supplementary question from the delegate asking, for example: “How many times were you threatened?  Who threatened you?  What was the substance of the threat?” and so on; all highly relevant matters. 

26. I am not satisfied that having regard to the question, and indeed the context and the lack of any follow-up question, that it was open to the Authority to conclude the applicant lacked any ability or capability to provide detail.  Of course, if the applicant was in fact incapable of providing details about his claims that would be highly suggestive that his claims were not true, and that is how the Authority reasoned. 

27. Ms Battiste said the reasons of the Authority should not be read with an eye keenly attuned to the perception of error and I have reminded myself that I should not do so.  Ms Battiste said that, in context, the word “inability” should be understood to mean “failure”.  In other words, the applicant’s lack of detail in response to this question and failure to describe in detail the claimed threats obviously leads to a doubt about the credibility of the applicant’s claims.  The meaning of the word “failure” is possibly what was intended but the word “inability” and the word “failure” have different meanings.  A person may fail to do something for reasons other than an incapacity to do something.  They are conceptually different. 

28. Had the Authority concluded that the failure of the applicant to provide detail about the threats – other than the stadium incident in his entry interview, in his statutory declaration, and generally in the interview with the delegate – when it is his responsibility to bring forward all of his claims, and all his evidence in support of his claims, undermined his credibility then no criticism would be merited.  Indeed it appears to me that if the Authority had reasoned that on the basis of the multiple opportunities the applicant had to provide detail of his claims, and his failure to do so, that it did not accept the claims as true that would be a process of reasoning that would be open to the Authority.  I am not saying correct, but simply a process of reasoning that would be open to the Authority.

29. My concern about the use of the word “inability” in the context of paragraph 17 is that the Authority’s conclusion that the applicant was unable or incapable of describing the threats in detail is based on one question and one answer.  This leads me to a concern that the Authority has misapprehended the nature of the evidence.  I think it is a reasonably close thing but ultimately I am persuaded, on the balance of probabilities, that the Authority has misapprehended the nature of the evidence from the applicant given in the interview because of the use of the word “inability” which is a word of ordinary meaning, and I think I am entitled to assume it was used intending to convey its ordinary meaning.

30. In the circumstances I am satisfied that the question and answer is not evidence of the applicant’s incapacity or inability to provide detail.  It may possibly indicate that but equally, in my view, it may be indicative simply of the to and fro of an oral interview where the applicant, through his interpreter, did not necessarily understand the importance of providing detail.  After all, the delegate did not pursue it with a follow-up question. 

31. On balance, I am satisfied the Authority has misapprehended the nature of the evidence given by the applicant.  Given that that is the only basis on which the Authority gives for its adverse credibility assessment of the applicant it appears to me that it is in error of such seriousness that it indicates the process of review has not been discharged in accordance with the statutory obligation of the Authority.  In other words, there has been error made of such seriousness that there was in truth no real review because in the paragraph I have quoted the Authority gives this as the only reason for the adverse credibility assessment.  Nowhere else that I was able to identify in the Authority’s reasons did it identify another basis for its adverse credibility assessment of the applicant.

32. I did not receive any detailed submissions about materiality but in the circumstances of this case where an adverse credibility assessment was the reason for disbelieving the applicant’s claims, and no other reason is given, it appears to me that the misapprehension of the one fact that is the foundation for the adverse credibility finding is material, or expressed in terms of Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 and Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54, I cannot be satisfied that the applicant has not been deprived of the prospect of a different outcome had this error not been made.

1. Accordingly, I am satisfied that the error is jurisdictional and I propose to make an order for the issue of the writs. There will be an order that the applicant is to file submissions in relation to costs and the respondent is to file submissions in relation to costs within a further seven days. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 15 May 2020