DPI17 v Minister for Immigration

[2018] FCCA 2039

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPI17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2039

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority – whether Authority acted unreasonably by failing to consider whether to exercise or by failing to exercise its discretion under s.473DC of the Migration Act 1958 (Cth) to obtain information from the Applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46A, 473DA, 473DB, 473DC, pt.7AA

Cases cited:

DFW16 v Minister for Immigration and Border Protection [2018] FCA 746

Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600

Minister for Immigration v CRY16 [2017] FCAFC 210

Applicant: DPI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1739 of 2017

Judgment of: Judge Hartnett

Hearing date: 17 July 2018

Delivered at: Melbourne

Delivered on: 26 July 2018

REPRESENTATION

Counsel for the Applicant: Mr McBeth

Solicitors for the Applicant: Wimal & Associates

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1739 of 2017

DPI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By judicial review application filed on 9 August 2017, the Applicant seeks judicial review of a decision of the Second Respondent, the Immigration Assessment Authority (‘the Authority’), wherein the Authority affirmed an earlier decision of a delegate of the First Respondent (‘the delegate’) to refuse to grant the Applicant a (Class XE) subclass 790 (Safe Haven Enterprise) visa (‘SHEV’).  The Applicant proceeds on an amended application dated 8 June 2018, wherein three grounds of judicial review are advanced in support of the Applicant’s claim that the Authority’s decision is affected by jurisdictional error.  At the hearing of the matter and in response to evidence put before the Court by the First Respondent, and in particular the affidavit evidence of Mr Lochland, the Applicant withdrew from grounds numbered 2 and 3 of the amended application.  The affidavit evidence of Mr Lochland, affirmed 3 July 2018, provided evidence as to the material which was before the delegate at the time of the delegate’s interview with the Applicant. It is clear that the Applicant’s statutory declaration dated 23 September 2013 was before the delegate, and was viewed by the delegate on 7 June 2016, 15 June 2016 and 26 September 2016, with the delegate’s decision being made on 22 November 2016. The withdrawal of those grounds was, in the circumstances, a necessary concession.

2. Ground 1 of the amended application on which the Applicant proceeds is as follows:-

   “1.    The IAA acted unreasonably in the exercise of its discretion, or alternatively, constructively failed to exercise its jurisdiction, in failing to exercise or failing to consider whether to exercise its discretion under s473DC to get information from the applicant or his representative.

   Particulars

   a)  The delegate made no reference to the applicant’s invalid application for a subclass 866 protection visa or any information provided as part of that application.

   b)  The IAA at [20]-[32] relied on a number of supposed inconsistencies between the applicant’s 23 September 2013 statutory declaration accompanying his invalid protection visa application and the information submitted as part of his 5 January 2016 SHEV application.

   c)  The applicant was not on notice that the material accompanying the invalid 2013 protection visa application would be considered by the IAA in circumstances where it had not been considered by the delegate.

   d)  The applicant was not given an opportunity to comment on or explain supposed inconsistencies between his 23 September 2013 statutory declaration and information submitted as part of his 5 January 2016 SHEV application.

   e)  The IAA did not exercise, or alternatively, did not consider whether to exercise its power under s473DC to invite the applicant to an interview.

   f) For the reasons given by Barker J in DFW16 v Minister for Immigration and Border Protection [2018] FCA 746 [56]-[71], the IAA’s failure to exercise or consider whether to exercise its power under s473DC was unreasonable in the circumstances of the case.”

3. The Court has before it the amended application together with, relevantly;  the Applicant’s outline of submissions dated 19 June 2018;  the First Respondent’s outline of submissions dated 9 July 2018;  the affidavit evidence of Mr Alexander Lochland affirmed 3 July 2018;  the affidavit evidence of Ms Danielle Nicholson affirmed 9 July 2018 to which is annexed and marked “A true copy of the transcript of the audio recording of the Applicant’s interview with the delegate of 15 June 2016”;  and the evidence as contained in the Court Book and Supplementary Court Book filed by the First Respondent on 2 May 2018 and 14 June 2018 respectively.  Additionally, the Court had handed to it a joint list of authorities containing the relevant legislation and cases and, in particular, the decision of Barker J in DFW16 v Minister for Immigration and Border Protection [2018] FCA 746 (‘DFW16’).

4. The Applicant contends that it was legally unreasonable for the Authority not to “consider” whether to exercise the power in s.473DC(3) of the Migration Act 1958 (Cth) (‘the Act’) to obtain information from the Applicant and, indeed, to obtain that information from the Applicant in relation to inconsistencies between a statutory declaration made by him on 23 September 2013 in support of an invalid application for a Protection (Class XA) subclass 866 (Protection) visa (‘the protection visa statutory declaration’), and a statutory declaration made by the Applicant on 24 December 2015 in support of a subsequent valid application for a SHEV (‘the SHEV statutory declaration’). The Applicant argues that the facts of this case fall squarely in line with the facts as set out in DFW16, and that the Court, because the case is materially identical to DFW16, is bound by the decision in DFW16 and must find jurisdictional error on the part of the Authority.

5. The Minister formally submitted to the Court that the decision in DFW16 is plainly wrong.  Regardless of that submission, the Court is bound to follow and apply DFW16 unless the facts of this case are distinguishable from those facts in DFW16.

Background

1. The Applicant was born on 14 August 1992 in the Mullaitivu district in the northern province of Sri Lanka.  He is of Tamil ethnicity and Hindu religion.  He is a citizen of Sri Lanka, and does not have a right to enter or reside in any other country.  He is single and has no children, and prior to leaving Sri Lanka, assisted his father on the family land. 

2. In August 2012 the Applicant left Sri Lanka, arriving in Australia on 10 September 2012. 

3. On or around 24 October 2013 the Applicant applied for a protection visa.  The Applicant and his representative submitted various documents in support of his application for a protection visa.  One of the documents submitted to the Department was the protection visa statutory declaration of the Applicant declared at Melbourne, Victoria on 23 September 2013.

4. As the Applicant arrived as an unauthorised maritime arrival, as defined in the Act, he became an unlawful non-citizen. He was prevented by sub-s.46A(1) of the Act from lodging a valid application for any visa while in Australia. On 20 November 2015, the Department of Immigration and Border Protection (‘the Department’) wrote to the Applicant advising him that he had previously submitted a purported application for a (subclass 866) Permanent Protection visa, however, as he arrived in Australia unlawfully and was affected by one or more application bars in the Act, his application was invalid and could not be processed any further. The Department invited the Applicant to apply for either a Temporary Protection (subclass 785) visa (‘TPV’) or a SHEV. The Applicant was advised that the Minister had exercised his power under sub-s.46A(2) of the Act to allow the Applicant to lodge either of those visa applications.

5. On or around 5 January 2016, the Applicant applied for a SHEV.  The Applicant was again represented, and he and his representative again submitted various documents in support of the application.  One of those documents was the SHEV statutory declaration.  This declaration was declared at Parramatta, New South Wales, on 24 December 2015. 

6. On 15 June 2016 the delegate interviewed the Applicant.  In the delegate’s decision record, dated 22 November 2016, the delegate set out, in part 4, a summary of the protection claims of the Applicant.  In broad terms, the Applicant claimed he would face a real chance of serious or significant harm in respect of his Tamil ethnicity; because he originates from the northern province of Sri Lanka; because he and his family were subject to questioning by the Sri Lankan authorities; because he was beaten and sexually assaulted on at least two occasions; because he left Sri Lanka illegally; and because if he returned to Sri Lanka, he would return as a failed asylum seeker.  Additionally, the Applicant claimed that:-

   a)there was a genuine suspicion held by the Sri Lankan authorities of the Applicant and/or his family being involved with the Liberation Tamil Tigers of Eelam (‘the LTTE’);

   b)the Applicant’s brother provided the Sri Lankan authorities an admission of involvement with the LTTE;

   c)the Applicant was of interest to the Sri Lankan authorities on account of his uncle’s membership of the LTTE, or his father providing low-level logistical support; and

   d)there was an enduring suspicion of the Applicant by the Sri Lankan authorities for links with the LTTE and imputed political opinion of support for the LTTE.

7. The delegate noted, in the protection visa decision record, under “Part 5: Findings of Fact” that:-

   “The applicant was interviewed on 15 June 2016 with the assistance of a Tamil interpreter in relation to his SHEV application. At this interview he was asked to speak about his life in Sri Lanka, including family, education, employment, and travel. Key matters central to his claims were discussed to determine the relative credibility of his protection claims, and in doing so, determine the factual basis of these claims. The applicant was provided with an opportunity to explain and provide further detail of his claims and to respond to information that did not support his claims.”

8. On 22 November 2016 the delegate refused to grant the Applicant a SHEV.  The delegate was not satisfied that on any return to Sri Lanka in the reasonably foreseeable future the Applicant would face a real chance of serious or significant harm.  Amongst other things, the delegate did not accept that there was any genuine suspicion of the Applicant, or his immediate family, by the Sri Lankan authorities for links with the LTTE.  In that regard, the delegate made adverse credibility findings about the Applicant’s claims and evidence, and found that they lacked detail, consistency, and plausibility. 

9. On notifying the Applicant and his representative of her decision, the delegate informed them that the Department had provided the Authority with her decision, as well as:-

   ·“any material you gave to the department before the refusal decision was made;

   ·any other material the department considers to be relevant to the review; and

   ·your contact details…”

10. Further, the Department advised the Applicant, by correspondence of 22 November 2016, relevantly, of the following:-

    “The IAA will review the refusal decision based on the information that was before the department’s decision maker and will consider new information only in exceptional circumstances.

    If you feel that there are exceptional circumstances that would justify the IAA considering new information, you will need to provide the new information and evidence of the exceptional circumstances directly to the IAA. It will be up to the IAA to decide whether or not exceptional circumstances exist in your case to justify consideration of the new information.”

11. On 28 November 2016, the delegate’s decision was referred to the Authority.  The Authority, by correspondence of 28 November 2016 to the Applicant, acknowledged the referral and provided to the Applicant, relevantly, a practice direction for “Applicants, representatives, and authorised recipients” which indicated, relevantly, under the heading “Submissions and new information”:-

    20.    For the purposes of the review you may provide a written submission on the following;    

    ·why you disagree with the decision of the Department

    ·any claim or matter that you presented to the Department that was overlooked.

    21.    Any submission must be concise.  It should identify and address the issues you want us to consider in our review.  Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department….

    …

    32. Interviews may be held in very limited circumstances in accordance with the provisions set out in the Migration Act. An interview may be held for us to obtain specific new information from you or another person. An interview may also be held to allow you to comment on new information that we have considered that may be adverse to your case. We will not conduct a full rehearing of the evidence or information that was before the Department.”

12. The correspondence of 28 November 2016 also contained the following advice for the Applicant:

    “The Department of Immigration and Border Protection (the department) has provided us with all documents they consider relevant to your case.  This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa.  The IAA will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information.  We can only consider new information in limited circumstances which are explained in the attached factsheet and Practice Direction.” 

13. By correspondence of 4 December 2016, the Applicant and his representative lodged written submissions on the Applicant’s behalf with the Authority. 

The decision of the Immigration Assessment Authority

1. By decision of 20 July 2017, the Authority affirmed the delegate’s decision to refuse to grant the Applicant a SHEV.  The Authority was not satisfied that on any return to Sri Lanka the Applicant would face a real chance of serious or significant harm on account of, amongst other things, his Tamil ethnicity or an imputed political opinion of support for the LTTE. The Authority formed an adverse assessment of the credibility of the Applicant’s claims and evidence. 

2. The Authority did not accept that the Applicant or his family were of any interest to the Sri Lankan authorities.  The Authority did not accept that the Sri Lankan authorities had targeted or harmed the Applicant and his family in the past and found in respect of the Applicant’s account of past events that the Applicant “was not recalling a personal experience”.[1] 

   [1] Decision Record, paragraph 32.

3. In paragraph 20 of the Authority’s Decision and Reasons (‘the Decision Record’), the Authority said as follows:-

   “On 15 June 2016, the applicant was interviewed by the delegate in connection with his claims for protection (SHEV interview). I have listened to the recording of that interview. As well the information contained with the SHEV application, I have also had regard to information provided by the applicant in a statutory declaration dated 23 September 2013, submitted in support of an invalid application for a Class XA Subclass 866 Protection visa (PV statement), and information provided in earlier interviews of 5 February 2013 (entry interview) and 21 September 2012 (arrival interview).”

4. In paragraphs 21 to 23 of the Decision Record, the Authority said further:-

   “21. Overall, I find the applicant’s evidence in relation to a number of his past experiences prior to coming to Australia to be unconvincing. In particular, I find there were a number of inconsistencies in the applicant’s evidence presented at different times that undermine the credibility of his claims.

   22.    Firstly, in his SHEV statement, the applicant stated that he and his brothers were captured by the SLA in April 2009. Although he was threatened with harm, the applicant stated that he was only interrogated, and that his brothers were beaten. However, in the entry interview, the applicant stated that he too was beaten at this time.

   23. Secondly, in the SHEV interview, the applicant stated that he was not harmed by the Sri Lankan authorities while at Arunachalam camp. He attributed this to the presence of the UNHCR (United Nations High Commissioner for Refugees) at the camp. He advised the delegate that it was only those who had previously admitted to LTTE involvement that were taken for questioning. However, in his PV statement, the applicant stated that he was interrogated while in the camp.”

5. Thereafter, in paragraphs 24 to 31 of the Decision Record, the Authority set out other discreet inconsistencies in the Applicant’s claims and evidence which led the Authority to conclude as set out in paragraph 32 of the Decision Record:-

   “The above inconsistencies lead me to conclude that the applicant was not recalling a personal experience in relation to the events of April 2009 and beyond.”

6. The Court notes importantly that the inconsistencies highlighted by the Authority in the Decision Record were inconsistencies that not only existed between the two statutory declarations of the Applicant, but that existed between one or other of the statutory declarations and the Applicant’s evidence at the SHEV interview; and/or the Applicant’s protection visa interview; and/or the Applicant’s entry interview.

7. Additionally, the Authority found a number of aspects of the Applicant’s claims to be implausible and as set out in paragraph 35 of the Decision Record found:-

   “When considered cumulatively, I consider the above inconsistencies and implausibilities to be significant, and undermine the applicant’s credibility…”

8. The Authority considered relevant country information in its consideration of the Applicant’s claims and evidence and as set out in the Decision Record.

Consideration

1. The fast track review process under s.473DB(1) of the Act requires the Authority to undertake a review of the delegate’s decision based on the material provided by the Department without accepting any new information and without interviewing the Applicant subject to the other provisions of Part 7AA of the Act.

2. Section 473DA of the Act is as follows:-

   “473DA  Exhaustive statement of natural justice hearing rule

   (1)  This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

   (2)  To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”

3. The Court notes that s.473DA(2) of the Act is subject to a finding of legal unreasonableness.

4. Section 473DC of the Act is as follows:-

   “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.”

1. The power in s.473DC of the Act is required to be exercised reasonably with the consequence that the unreasonable failure to exercise the power or to consider exercising the power will amount to a constructive failure by the Authority to conduct the review.[2] 

   [2] Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600, 21 per Gageler, Keane and Nettle JJ, 86 per Gordon J; Minister for Immigration v CRY16 [2017] FCAFC 210, 82.

2. In paragraphs 82 and 83 of Minister for Immigration v CRY16 [2017] FCAFC 210, the Full Court of the Federal Court stated relevantly:-

   “82. … The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably.  The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocating to Beirut.  The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate.  The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation.  In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

   83. As in Li, at [82], it is not apparent how the conclusion not to consider the exercise of the discretionary power was reached in the present case, having regard to the facts and to the statutory purpose for which the discretion to get new information was directed.”

3. The Applicant submitted the Authority’s adverse credibility finding based on the identified inconsistencies as set out in the Decision Record was plainly central to the Authority’s disposition of the review. The Applicant submitted there was no evidence that the Authority gave any consideration to exercising its power under s.473DC of the Act to invite the Applicant to an interview to discuss the alleged inconsistencies or to put them to him for comment in any other form.

4. It is not in dispute that an interview under s.473DC of the Act was not held, nor was there any communication made to the Applicant in the exercise of s.473DC of the Act, which is also not in issue.

5. The First Respondent submitted however that the facts in the present case are distinguishable from the facts of DFW16.  The First Respondent submitted, in particular, that the evidence before the Court shows that:-

   a)the protection visa statutory declaration was before the delegate at the time of the making of her decision to refuse to grant the Applicant a SHEV.  The Court finds that is clearly the case and made out on the evidence, and;

   b)before making that decision the delegate interviewed the Applicant and at that interview:

   i)the delegate referred to the protection visa statutory declaration and observed that that statutory declaration was not consistent with the SHEV statutory declaration. The Court finds again, on the evidence, this is clearly so, and;

   ii)the Applicant and his representative were given and took up an opportunity to make submissions to the delegate about inconsistencies between the statutory declarations.  The Court finds again this to be the case.

6. The Court accepts the First Respondent’s submission that even if the delegate did not refer to the protection visa statutory declaration in her decision, the Applicant and his representative were, or at least should have been, well aware that the Authority might have regard to that statutory declaration and any inconsistencies between it and the SHEV statutory declaration, in particular because they were aware that the earlier statutory declaration was before the delegate and therefore would be before the Authority.  This is important because the Authority was required in the conduct of its review to reach its own view of the matter on all of the materials before the delegate, and in doing so was no way bound to follow the findings and reasons of the delegate. In Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16, Gageler, Keane and Nettle JJ said at paragraph 17, relevantly:-

   “…The task of the Authority under s 473CC(1) is 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.  The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits.”

7. To the foregoing can be added that the Authority, in fact, had regard to the inconsistencies as conveyed to the Applicant and his representative.

8. The First Respondent submits it was not legally unreasonable for the Authority to have regard to the protection visa statutory declaration and any inconsistencies between that statutory declaration and the SHEV statutory declaration, nor was it legally unreasonable for the Authority not to consider in respect of any inconsistencies between those statutory declarations, whether to get new information from the Applicant under s.473DC(3) of the Act. The Court accepts this submission.

9. In DFW16 the Authority had also affirmed a decision to refuse to grant the Applicant a SHEV.  In doing so the Authority had referred to and relied on inconsistencies between the Applicant’s earlier claims in support of an invalid protection visa application, and the later in time claims in support of a valid SHEV.  The facts in DFW16 make clear that the Applicant in that case did not know that the Applicant’s previous statutory declaration was before the delegate, in fact, it was. There was no evidence before the Court to indicate that the Applicant had been made aware that his previous statutory declaration was, on review, before the Authority.  The Applicant was thus not aware of any inconsistencies in the material he had placed before the Authority. The facts of DFW16 do not admit of any actual constructive awareness on the part of the Applicant of the prospect that the Authority would refer to, and rely on, those inconsistencies.  As stated by Barker J in DFW16 at paragraphs 61 and 62:-

   “61. It is then relevant to note that the delegate, in making the refusal decision on the 2015 SHEV application, made absolutely no reference to the 2013 protection application, even after conducting an interview with the appellant.  There was then nothing obvious, by the way of a signal to the appellant, from the terms of the delegate’s decision that the appellant should make submissions or seek to give new information to the Authority about apparent inconsistencies in the two applications for the purpose of the Authority’s consideration of the delegate’s decision.

   62. Indeed, in circumstances where there had been a gap of more than two years between the making of the 2013 protection application and the receipt of the 8 September 2015 letter from the Department inviting the SHEV application; the making of the SHEV application some two months later in November 2015, which in its terms did not make any reference to the protection application; the decision of the delegate making no reference to the 2013 protection application or the grounds advanced in support of it; and the ambiguities as to the status of the 2013 application arising from the 8 September 2015 Departmental letter advising of the invalidity of the 2013 application, and returning the copy of it with advice that it would not “be processed any further”; all  should have caused the Authority at least to consider whether it should invite the appellant to comment on the apparent inconsistencies it had identified as arising out of the two applications in its own decision‑making process.”

   And in conclusion at paragraph 71 of the judgment:-

   “In those circumstances, I consider that the judge in the Circuit Court erred in not finding that, while the Authority could regard the 2013 application in its decision-making, the Authority acted unreasonably in failing to consider whether it should invite the appellant to comment on the question of the internal inconsistencies it had identified between the two applications before finally disposing of the SHEV application; and so would uphold the appeal on this ground.”

10. The facts of this matter are that at the interview with the delegate on 15 June 2016:-

    a)the delegate referred to the protection visa statutory declaration, and observed that the statutory declaration was not consistent with the SHEV statutory declaration; and

    b)the Applicant and his representative made submissions about inconsistencies between the statutory declarations.

11. Whilst the delegate’s decision record does not make explicit reference to the above matters (as set out in paragraph 40), the affidavit evidence and annexure to the affidavit of Ms Danielle Nicholson, makes clear that a dialogue did occur between the delegate and the Applicant and his representative, as to inconsistencies between the two statutory declarations of 23 September 2013 and 24 December 2015, with the delegate giving both the Applicant and his representative an opportunity to make submissions to the delegate about any inconsistencies between the statutory declarations. Further, that evidence makes clear that the Applicant’s protection visa statutory declaration was before the delegate at the time of making her decision to refuse to grant the Applicant a SHEV.

12. The copy of the transcript of the interview of the Applicant with the delegate, held on 15 June 2016 and annexed to the affidavit affirmed by Ms Nicholson, contains the following exchange:-

    “[Delegate], question 306: … I’m just reading through your statement of claims from your 2013 application.  Okay, so there was just a little point of difference that I just wanted to talk to you about.  It says here, “In June 2013 my brothers were taken for  an interrogation.”  You said, “The CID told my brothers that I had already confessed and that I was in the LTTE but they wanted them to confirm this information.”

    …

    [Delegate], question 310:…  Because I just don’t think it was in  his subsequent - in that sort of detail, I guess, in his subsequent statement of claims.

    [The Applicant’s agent (‘AA’)]: Yes, this was prepared initially (indistinct).

    [Delegate]: Yes.

    [AA]: The one 23 September.

    [Delegate], question 311: Yes.  So yes, so his SHEV application was submitted in December 2015 and so he said approximately two months ago police officers had gone home and handed a letter, so there was that incident.  But just in his 866 application he talks about a June 2013 incident, and that’s not mentioned in his SHEV statement of claims.  So I just sort of wanted to clarify that point.  Okay.  You’ve done really well; I know that was  not easy. So even though you were never involved with the LTTE, do you have any opinions about what the LTTE were trying  to achieve?

    …

    [Delegate], question 322: Okay, so would you have any final comments that you would like to put forward?

    [Applicant]: No.

    [Delegate], question 323: Okay.  Do you feel like I understand your case?

    [Applicant]: Yes.

    [Delegate], question 324: And do you think that I’ve covered off all of the main points of your case?

    [Applicant]: Yes.

    [Delegate], question 325: Do you think that there’s – was there anything else that you think that we should have discussed that I haven’t questioned you about today?

    [Applicant]: No.

    …

    [AA]:  I also request you to extend the doubt with regard to  certain inconsistencies.  The 2013 statement was taken a long time ago, and then subsequently I had access to the 2013 statement and then regarding - I have to take into consideration of that statement as well, because I did not see the initial statement, (indistinct) the more   recent one.

    [Delegate]: Yes.

    [AA]: So I request you to extend the benefit of the doubt, especially as the incident did not (indistinct) it is accepted.  So he falls in the category of vulnerable people, and therefore I request you to extend the benefit of the doubt, if there is – it’s required.

    [Delegate]:  Yes, my observation of the statement of claims - I mean the discrepancies aren’t major, and I guess given what’s happened to him, he doesn’t - you know, sometimes it’s a bit hard to try and get out some of those details through it.

    [AA]:  Yes, yes. 

    [Delegate]: So I sort of saw that maybe in the statement of claims as well, so I personally am not putting a lot of weight on those discrepancies because on the whole I’ve found them to be consistent, so – – –

    [AA]:  Thank you for that, I appreciate it.”

13. The above extracts from the transcript of the Applicant’s interview with the delegate clearly indicate that the two statutory declarations were material before the delegate, and that the delegate conveyed to the Applicant, and the Applicant’s representative, that such material was in fact before her.  Furthermore, the delegate conveyed that there were inconsistencies and discrepancies in respect of the claims made in the two statutory declarations, and provided to the Applicant and his agent an opportunity to make submissions to the delegate about any of those inconsistencies. 

14. These relevant facts distinguish the facts of this case from the facts in DFW16.

15. Having regard to the above, there was no legal unreasonableness on the part of the Authority, not considering, in respect of inconsistencies between the statutory declarations, whether to get new information from the Applicant under s.473DC(3) of the Act, nor indeed, legal unreasonableness on the part of the Authority in not obtaining new information from the Applicant.

16. The ground is not made out. The application shall be dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 26 July 2018