Eat17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 110
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EAT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 110
File number(s): PEG 98 of 2021 Judgment of: JUDGE LADHAMS Date of judgment: 24 February 2022 Catchwords: MIGRATION – judicial review of decision of Immigration Assessment Authority – where Authority determined issue of credibility contrary to delegate – whether failure to exercise discretion in s 473DC to invite applicant to an interview to assess his credibility was unreasonable – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 5AA, 36, 46A, 473CC, 473DC, 476, Part 7AA Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
CRK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 267
CRP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3041
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
EKN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3022
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 28 January 2022 Place: Perth Counsel for the Applicant: Mr A Aleksov Solicitor for the Applicant: Chisholm Law Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 98 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EAT17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
24 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
Before the Court is an application brought under s 476 of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority) on 14 April 2021. The Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The applicant raises a single ground of application alleging that the Authority acted unreasonably in rejecting a claim by the applicant to have been detained by the Sri Lankan authorities for a period of 25 days, which the delegate accepted, without first exercising its discretion in s 473DC(3)(b) of the Migration Act to invite the applicant to attend an interview. In advancing this ground, the applicant relies on the High Court’s decision in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17).
For the reasons explained below I find that the applicant has not established jurisdictional error in the Authority decision. I therefore dismiss the application.
BACKGROUND
The applicant is a citizen of Sri Lanka. He entered Australia at Cocos (Keeling) Islands in August 2012 without a visa. He is an unauthorised maritime arrival within the meaning of
s 5AA of the Migration Act.
On 11 September 2015 the Minister’s Department sent to the applicant an invitation to apply for a protection visa. The letter advised the applicant that the Minister had exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1) which had, until that time, prevented him from applying for a protection visa.
On 23 May 2016 the applicant made a valid application for a Safe Haven Enterprise Visa, which is a type of protection visa. The applicant’s claims for protection were set out in a statement that accompanied his protection visa application. The applicant claimed to fear harm at the hands of the Criminal Investigation Department (CID) should he return to Sri Lanka due to his Tamil ethnicity and imputed connection to the Liberation Tigers of Tamil Eelam (LTTE). He relevantly claimed that he had, on multiple occasions, been harassed, threatened and interrogated by the CID. He also claimed that he had been detained, interrogated and beaten by the CID for two days in May 2009 and for 25 days in June 2009. It is the latter claim about the 25 day period of detention that is relevant to the application to this Court. The applicant provided the following information about that claim in his statement dated 23 May 2016:
19. … Sometime in June [2009], the CID came to our home and arrested me again. I was taken into custody again under suspicion of being an LTTE member. I believe they did this because we[1] could not give into their demands for money. This time I was detained for about twenty-five days at the local police station in Trincomalee.
20. During this time the CID interrogated me every couple of days, asking me the same questions over and over again, and beating me when I would not admit I was involved with the LTTE. They told me if we didn’t meet their demands for money that they would continue to arrest me and harass my aunt and her family.
21. I was released from the police station approximately twenty-five days later and went back to my aunt’s house. I had nowhere else to go. The CID continued to harass my aunt and I, even after being released for the second time.
[1] By ‘we’ I understand the applicant to be referring to he and his aunt.
On 22 September 2016 the applicant attended an interview conducted by the delegate to discuss his claims for protection.
On 8 December 2016 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate made the following finding in relation to the harm that the applicant claimed to have faced in the past:
I found that the evidence provided at interview was generally consistent with the applicant’s written statement of claims. During the course of the interview, some inconsistencies emerged in respect of exact dates, dates and years and the exact sequence of events. These inconsistencies were put to the applicant and further discussed.
Overall, despite what I believe to be some exaggeration in respect of the recounting of some incidents and events, there is no evidence to suggest that these claims have been fabricated. I therefore accept the applicant’s claims in relation to specific incidents and events that had allegedly occurred to himself and/or to other members of his family whilst previously in Sri Lanka up until his departure from Sri Lanka on … August 2012.
However, the delegate found that the applicant was of no real interest to the authorities at the time he left Sri Lanka in 2012, and relying on country information about the current situation in Sri Lanka, found that the applicant would not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future.
The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 9 August 2017 the Authority affirmed the decision of the delegate not to grant the applicant a protection visa.
The applicant filed an application in the Federal Circuit Court for judicial review of the Authority’s 2017 decision. On 30 October 2018 the Federal Circuit Court dismissed the application but a subsequent appeal to the Federal Court was successful. The Federal Court found there was jurisdictional error in the Authority’s 2017 decision on the basis that the Authority found that the applicant could relocate to another part of Sri Lanka where he would not face a real risk of significant harm without properly considering, for the purposes of s 36(2B)(a) of the Migration Act, whether it was reasonable for the applicant to relocate within Sri Lanka. On 5 February 2021 the Federal Court quashed the Authority’s 2017 decision and remitted the matter to the Authority for determination according to law.
On 18 March 2021 the Authority invited the applicant to comment on new country information it had obtained and the applicant’s response, provided via his representative, was received on 6 April 2021. Included in this response was a statutory declaration dated 1 April 2021, a submission from the applicant’s representative dated 1 April 2021, and a country information report dated 21 March 2021.
The Authority affirmed the decision of the delegate not to grant the applicant a protection visa on 14 April 2021.
Given the limited nature of the issues that arise for determination in this proceeding, it is not necessary to set out a detailed summary of the Authority decision. For present purposes, there are two main aspects of the Authority decision that need to be noted.
First, the Authority was generally satisfied of the applicant’s credibility.
Second, although the Authority accepted most of the applicant’s claims of past harm, it did not accept that the applicant had been detained for 25 days in June 2009. The Authority’s reasons for this finding are set out at [36] of its reasons, which needs to be read in the context of [35]. In these paragraphs, the Authority said:
35.At his SHEV interview discussing events following his release after his two-day detention, the applicant said that once every two days, or four days or once a week they came and harassed him, and it was like torture. They asked him the same questions, whether he was involved in the LTTE, why he came there and why he was staying. This continued until he went to India. He applied for a visa to India, the first time it was rejected and then after three months, he applied for a tourist visa and he got the visa to go to India. He went to India and extended his three-month visa by reporting to the police station and stayed there one year. He went back to Sri Lanka because the problem was over at the time, his parents had moved from the camp to his hometown and he wanted to study. He lived with his Aunt in Trincomalee. When he went to school the CID would harass him, and over the phone, they would ask his Aunt for money. The CID would harass him and his friends on the way to school at the army check point. He didn’t know the reason his Aunt was being asked for money, but they told her if she did not pay, they would take him and shoot him.
36.I consider it significant that in describing events at his SHEV interview after his release from his two day detention and his applying for his visa to India and eventually being granted the tourist visa, the applicant failed to recall his arrest and 25 day detention in June. In his written claims the applicant provided a relatively detailed account of his first two day detention and treatment but his evidence regarding his 25-day detention lacked similar substance despite it being for a more significant period of time. I also observe that according to his SHEV application his Sri Lankan passport was granted on 15 June 2009, the same month the applicant was purportedly detained for three and a half weeks. Given this and his failure to recall this event, I am not satisfied the applicant was detained for a 25-day period before he departed for India.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings in this Court by way of application filed on
18 May 2021 and supported by an affidavit filed on the same date. On 2 September 2021 the applicant filed an amended application.
The amended application raises one ground of review. This ground is:
1.The IAA’s performance of its duty to review the decision of the delegate miscarried by reason of non-compliance with the implied condition of reasonableness.
PARTICULARS
a. The applicant claimed that he feared harm, including being detained, beaten, tortured and possibly killed, by the Sri Lankan authorities, particularly the CID, on the basis of his Tamil ethnicity and his illegal departure from Sri Lanka (AB 55-58; 167-172).
b. He claimed, inter alia, that he had previously been detained for about 25 days by the CID during which time he was interrogated continually and beaten (AB 57 at [14]-[15]; AB 170 at [19]-[21]).
c. The delegate accepted the applicant’s claims about the events in his life prior to his departure from Sri Lanka (AB 218, under the heading ‘Findings of fact’). This included acceptance of his detention for 25 days.
d. The claim of having been detained for 25 days was squarely rejected by the IAA (at AB 542-3, [36]), in circumstances where the IAA failed to seek out new information from the applicant about the issue, and without taking account of the advantage that the delegate had over the IAA with an in person interview.
e. By failing to invite the applicant to a further interview, the IAA transgressed the reasonableness condition implied into both the imposition of its duty to conduct a review under s 473CC of the Migration Act 1958 and the conferral of its powers to get and consider new information in conducting a review under s 473DC(3) of that Act.
The matter came before me for hearing on 28 January 2022. At the hearing the applicant was represented by Mr Angel Aleksov and the Minister was represented by Mr Greg Johnson.
SUBMISSIONS OF THE PARTIES
Applicant’s submissions
The applicant’s submission, relying on ABT17, was that the Authority’s performance of its duty to review the decision of the delegate miscarried by reason of non-compliance with the implied condition of reasonableness.
The applicant submitted that the delegate accepted his claims about the events in his life prior to his departure from Sri Lanka and this included acceptance of his claim to have been detained for 25 days in June 2009. The findings of the delegate as to the applicant’s demeanour and credibility were implicit rather than express, but the delegate’s acceptance of the applicant’s credibility was recorded without ambiguity. The applicant submitted that the delegate tested his credibility by putting to him inconsistencies that had emerged at the interview in respect of exact dates, years and the exact sequence of events.
The Authority rejected the applicant’s claim of having been detained for 25 days in circumstances where the Authority did not seek new information from the applicant about the issue, and did not take into account the advantage that the delegate had over the Authority as a result of conducting an in person interview. The applicant submitted that the main reason the Authority gave for rejecting his claim of having been detained for 25 days was that the applicant, at his interview with the delegate, failed to recall his arrest and 25 day detention in June 2009. This can be contrasted with the delegate’s acceptance of the applicant’s claims, including his claim of the 25 day period of detention, in circumstances where the delegate was in a position to observe the applicant’s demeanour while his evidence was tested and he responded to inconsistencies. The applicant submitted that by failing to invite him to an interview the Authority transgressed the reasonableness condition implied into the imposition of its duty to conduct a review under s 473CC of the Migration Act and the conferral of its powers to get and consider new information in conducting the review under s 473DC(3) of the Migration Act.
In oral submissions, Mr Aleksov placed particular significance on the words ‘failed to recall’ in [36] of the Authority’s reasons. Mr Aleksov submitted that these words showed that the Authority had an expectation that, at an appropriate point in the interview, the applicant would mention his claim to have been detained for 25 days in June 2009. Given this expectation, when the applicant failed to mention the claim, the Authority inferred that the claim must not be true. Mr Aleksov submitted that for the Authority to reason that way, there must have been a question put to the applicant or a circumstance that arose where the Authority would have expected the applicant to say something on that issue. For the Authority to reach that conclusion, opposite to the delegate’s finding, it is necessary to pay attention to the thrust and width and momentum of the interview. The delegate, who saw the applicant face-to-face, did not consider that the applicant ‘failed to recall’ his 25 day period of detention in June 2009. Mr Aleksov submitted that it was unreasonable for the Authority to reach its conclusion on this issue without taking into account the information deficit.
In response to the Minister’s submission that there was no informational gap in this matter about the applicant’s claim to have been detained for 25 days in June 2009 because the applicant did not discuss that claim at the interview with the delegate, Mr Aleksov submitted that the informational gap does not lie in the content of any discussion about the 25 day period of detention. Rather, the informational gap lies in whether or not the cut and thrust and parry and momentum of the interview were such that the applicant was put in a position where one would have expected him to mention the 25 day period of detention, and the failure to mention it is thus probative against its truth.
Minister’s submissions
The Minister submitted that it is not apparent from either the reasons of the delegate or of the Authority that the applicant’s manner or demeanour at the protection visa interview with the delegate was a factor that was considered relevant by the delegate or the Authority in determining whether his claim to have been detained for 25 days in June 2009 should be accepted.
The Minister submitted that the Authority had accepted the applicant’s claims for the most part, with the one exception being that the Authority was not satisfied that the applicant had been detained by the CID for 25 days in June 2009. The reason for the Authority’s finding was because the Authority considered it significant that the applicant, in describing events at the protection visa interview, failed to recall his arrest and detention. The Authority identified a relative lack of detail between the applicant’s written claims about his two day detention and later, but significantly longer, detention in June 2009. The Authority also referred in support of its conclusion to the fact that the applicant was granted a passport on a date in June 2009, the same month he claimed to have been detained.
The Minister sought to distinguish ABT17. In ABT17, the Authority listened to the audio recording of the interview with a delegate and observed that the applicant’s evidence was generally lacking in detail and was vague and hesitant. The High Court observed that an interview was the obvious means by which the Authority might seek to resolve these matters of concern. The Minister submitted that the Authority is not prohibited in the exercise of its jurisdiction from making different findings of fact to those made by the delegate, and the scheme of review established under Part 7AA of the Migration Act expressly requires the Authority to assess for itself questions of fact.
The Minister submitted that there was no informational gap of the kind referred to in ABT17 in the present case. The Minister acknowledged that the Authority did not have the benefit of witnessing the applicant answer the delegate’s questions, and noted that the Authority recorded, at [36] of its reasons, that the applicant failed at the interview to recall his claim to have been detained for 25 days. The Authority generally considered the applicant to be credible in his claims. It was specifically concerned that the applicant had exaggerated his detention claims by including an additional and longer period of detention in 2009. On the specific claim, the Authority was not deprived of any information the delegate possessed, including any consideration of the applicant’s demeanour in describing what occurred in June 2009.
The Minister submitted that even if there was a relevant informational gap, the Authority’s approach did not result in error. The Minister submitted that the present case is not a case where the Authority formed a different view about a claim advanced by the applicant because of the manner in which the applicant had addressed or developed the claim at the interview with a delegate. Rather, this is the type of case that the plurality identified in ABT17 where it was open to the Authority to reach a different conclusion to that reached by the delegate, without inviting the applicant to an interview. This is not a case where the Authority’s decision was affected by jurisdictional error because it did not invite the applicant to provide new information about the detention claim, in circumstances where the applicant failed to recall his arrest and 25 day detention in June 2009. The Minister submitted that the applicant assumes without reference to the decision record of either the delegate or the Authority that the applicant’s demeanour at the interview was relevant to the delegate’s acceptance of that claim and might have been relevant to the Authority’s acceptance of that claim. The Minister submitted that the reasons for decision given by the decision-maker should be given appropriate weight. The applicant did not recall the 25 day detention claim at the protection visa interview, so the delegate could not have assessed the applicant’s credibility in relaying the detail of that claim.
In his oral submissions, Mr Johnson submitted that the present case is a situation where the Authority found the applicant to generally be truthful in relation to his protection claims, based on the review materials including the delegate’s decision record and the audio recording of the protection visa interview. The Authority in this matter was not operating at a disadvantage to the delegate by reference to a relevant informational gap. The very claim that the Authority did not accept was one about which the applicant provided no information during his interview with the delegate. Neither the Authority nor the delegate had the benefit of witnessing the applicant describe his claim to have been detained for 25 days in June 2009.
Mr Johnson submitted that the Authority should be taken to have adopted the positive credibility findings made by the delegate in relation to all of the applicant’s claims of past harm that the Authority accepted. It cannot be inferred in the present case that the Authority came to a different view to the delegate about the 25 day detention claim because of concerns about how the applicant presented that claim – his demeanour – because the applicant did not discuss that claim at his interview with the delegate. The Authority’s review function does not include providing additional opportunities to an applicant who omits to mention an important claim at his interview. The High Court made clear in ABT17 that it was not espousing a view that in every single case where the Authority makes different findings to the delegate in relation to an applicant’s credibility, the Authority must invite the applicant to attend an interview.
Mr Johnson accepted that the Authority appears to have had an expectation that the applicant would have recalled the 25 day detention claim in his interview with the delegate. He submitted that it is not surprising or controversial that the failure of an applicant to mention a significant claim at an interview will be a reason for a decision-maker to reach the view that the claim should not be accepted as a truthful event.
RELEVANT LAW
It is well-established that the Authority’s discretionary powers are to be exercised subject to the implied condition of reasonableness: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21]; BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 (BVD17) at [15]; ABT17 at [3].
The discretionary powers of the Authority include the power to get new information in s 473DC(3) of the Migration Act. Section 473DC provides:
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.
It is open to the Authority to make different findings of fact to those findings made by the delegate, on the same material that was before the delegate. This was confirmed by the Full Court of the Federal Court in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12, where the Full Court said:
72.In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106] that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
…
76.It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.
As can be seen from that extract, the Authority does not need to invite an applicant to comment in every case before making a factual finding different to a finding made by a delegate. However, in some cases, a failure to exercise the discretion in s 473DC of the Migration Act, or to consider the exercise of the discretion, to obtain new information from an applicant can be unreasonable. One such case is ABT17, where the High Court held that the Authority will act unreasonably ‘if, without good reason it does not invite an applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given’: ABT17 at [25].
In the present case, the applicant alleges that the Authority acted unreasonably and made the same error as the Authority in ABT17. It is therefore appropriate to look more closely at the error found by the High Court in ABT17.
In ABT17, the applicant advanced claims for protection and claimed to have faced past harm in Sri Lanka. He attended an interview with a delegate of the Minister, at which he discussed his claims for protection, including a claim that he had been sexually tortured. The delegate found that the applicant’s evidence during the interview was plausible and broadly consistent with country information. Upon review, the Authority accepted some of the applicant’s claims, but found that others were exaggerated and embellished. It was not satisfied that the applicant had been detained and sexually tortured in May 2011, in part because, based on the Authority’s review of the audio recording of the interview, the Authority found that the applicant’s evidence before the delegate was lacking in detail, the applicant had been unable to expand in any detail on a number of his claims and, at times, the applicant sounded vague and hesitant.
The plurality (Kiefel CJ, Bell, Gageler and Keane JJ) recognised that there is ‘potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded’: at [13]. The Authority will not have in the review material a visual impression of how the referred applicant appeared during the interview — his or her demeanour: at [13]. An informational gap of that nature has the potential to impact on the Authority’s assessment of the credibility of a referred applicant, and in turn, its assessment of the applicant’s credibility overall: at [14].
The High Court found that it was unreasonable for the Authority, in the circumstances of that case, not to exercise its discretion in s 473DC(3) of the Migration Act to invite the applicant to an interview so that it could assess for itself the applicant’s demeanour. The plurality said at [29]:
Had the Authority acted reasonably in performing its duty to review the decision of the delegate cognisant of its informational disadvantage in assessing the credibility of the appellant when compared with the delegate, the Authority would not have rejected the appellant's account of having been detained and beaten and sexually tortured on the basis of how he sounded on the audio recording without inviting him to a further interview so as to see him as well as hear him. By failing to invite the appellant to a further interview, the Authority transgressed the reasonableness condition implied into both the imposition of its duty to conduct a review and the conferral of its powers to get and consider new information in conducting a review.
The High Court also confirmed that it is not necessary for the Authority to invite a referred applicant to an interview in every case where credibility is an issue. The plurality said at [22]-[23] (footnotes omitted):
22.The mere existence of an informational gap will not necessarily result in the Authority being "disadvantaged in comparison with the delegate". That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
23.To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.
RESOLUTION
It is clear from the relevant findings of the Authority and the delegate set out in the background to this judgment that the delegate accepted the applicant’s claim to have been detained for a period of 25 days in June 2009 and the Authority did not accept that claim. The reasons given by the Authority for rejecting this claim were:
(a)the applicant failed to mention this claim in his protection visa interview when asked about the events following his two-day detention in May 2009;
(b)the comparative lack of detail about this event in the applicant’s written claims; and
(c)the applicant was granted a Sri Lankan passport on a date in June 2009.
Both parties have presented their submissions in the present case on the basis that the delegate personally interviewed the applicant and that the Authority was provided with an audio recording of that interview. It therefore can be accepted that the delegate had the opportunity to visually assess the applicant and form impressions of the applicant’s demeanour based on that visual assessment, and the Authority did not have that same opportunity.
However, this on its own is not sufficient to give rise to the error in ABT17 and I am not satisfied in the present case that the applicant has established that the Authority acted unreasonably in failing to exercise its discretion in s 473DC(3)(b) of the Migration Act to invite the applicant to attend an interview. In summary, my reasons for this are as follows:
(a)The applicant did not discuss at his protection visa interview his claim to have been detained for 25 days in June 2009 and, as a result, there was no opportunity for either the delegate or the Authority to assess his demeanour while giving evidence about that particular claim. There was no informational gap of the type described in ABT17 in relation to the applicant’s demeanour in giving his account of his claim to have been detained for 25 days in June 2009, as no oral account was provided.
(b)It may be accepted that the delegate otherwise had the opportunity to assess the applicant’s demeanour throughout the interview generally and the Authority did not. To the extent that this gave rise to a type of informational gap, it did not place the Authority at a disadvantage compared to the delegate when assessing the applicant’s specific claim to have been detained for 25 days in June 2009.
These reasons are further explained below.
No informational gap arose from the Authority’s inability to assess the applicant’s demeanour when discussing his claim to have been detained for 25 days as that claim was not discussed at the interview
My primary reason for finding that the applicant’s ground is not established is that the applicant did not discuss at his protection visa interview his claim to have been detained for 25 days in June 2009. This means that the delegate did not have the opportunity to assess the applicant’s demeanour in relation to that specific claim. Accordingly, in assessing that specific claim, the Authority was in as good a position as the delegate and had access to the same review materials as the delegate. There was no relevant informational gap relating to the applicant’s demeanour specific to his 25 day detention claim.
The absence of any oral account at the protection visa interview of the applicant’s claim to have been detained for 25 days in June 2009 means that this is not a matter in which the Authority ‘reject[ed] an account given by the applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given’: ABT17 at [25]. It follows that I do not accept the applicant’s submission that this matter is ‘on all fours’ with ABT17.
The applicant in his written submissions referred to the Federal Circuit Court’s judgment in CRK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 267, in which the Federal Circuit Court (Judge Heffernan) found that there was a jurisdictional error of the type identified in ABT17. An appeal from that judgment was dismissed: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1070. However, that case does not directly assist the applicant in the present matter, nor do other cases where the courts have found jurisdictional error based on ABT17: see for example, CRP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3041 and EKN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3022. In each of these cases, the applicants discussed at their respective protection visa interviews the claims that were accepted by the delegate and rejected by the Authority on the basis of the Authority’s assessment of the oral account given by the applicant at the interview.
Any informational gap that arose from the delegate’s ability to assess the applicant’s demeanour throughout the interview more generally did not require the Authority to invite the applicant to an interview
I then consider whether the delegate’s ability to view the applicant’s demeanour when discussing other claims in his protection visa interview gave rise to any type of informational gap which required the Authority, as an incident of its obligation to act reasonably, to invite the applicant to an interview.
The applicant’s submission in this regard can be summarised as follows:
(a)the Authority’s reasoning at [36], and in particular, the reliance it placed on the applicant having ‘failed to mention’ his claim to have been detained for 25 days suggests that the Authority had an expectation that, if true, the applicant would have mentioned that claim at an appropriate point in his protection visa interview;
(b)when considering the Authority’s expectation that the applicant would mention the claim at the interview if the claim were true, it is appropriate to have regard to the thrust and width and momentum of the interview;
(c)the delegate was able to communicate with the applicant face-to-face and assess the applicant’s demeanour;
(d)the delegate accepted the applicant’s claim to have been detained for 25 days in June 2009 even though he did not raise it in the protection visa interview; and
(e)the Authority acted unreasonably in not inviting the applicant to an interview before rejecting his claim to have been detained for 25 days in June 2009.
Further, in response to the Minister’s submission that there was no informational gap as the claim was not discussed, Mr Aleksov for the applicant submitted that the informational gap does not lie in the content of any discussion about the 25 day period of detention. Rather, the informational gap was ‘whether or not the cut and thrust and parry and momentum of the interview were such that the applicant was put in a position where one would expect him to have mentioned the 25 day period of detention, and the failure to mention it is thus probative of its truth’.
Before considering the applicant’s submission in detail, I make some preliminary observations.
(a)First, despite the applicant submitting that the case is ‘on all fours’ with ABT17 – a submission which I have rejected above – the applicant’s submissions go well beyond the demeanour issues that the High Court considered in ABT17. The informational gap as described at various times in the applicant’s oral submissions relates not only to the applicant’s demeanour, but to non-verbal communication between the applicant and the delegate more generally. For example, when referring to the value of demeanour spoken about in ABT17, Mr Aleksov said that ‘when one is speaking to a person face-to-face, often enough some things just don’t need to be said in order for the people to be communicating effectively’. Later in his submissions, Mr Aleksov gave an analogous example that included communication by way of a smile or body language. I did not understand Mr Aleksov to be expressly submitting that there was some form of non-verbal communication on the part of the delegate that comprised an informational gap in the present case. However, if that was implied in the submission, it could not, in my view, establish jurisdictional error in the absence of clear evidence as to what the non-verbal communication was and how it impacted the Authority decision.
(b)Second, to the extent that the ‘width and momentum’ or ‘cut and thrust and parry and momentum’ of an interview is relevant to the assessment of an applicant’s credibility, this must necessarily include consideration of the verbal communications in a hearing, specifically, the questions asked by the delegate and the answers given by the applicant. No evidence of these matters has been provided to the Court.
I accept that there may be some form of informational gap in circumstances where the delegate was able to assess the demeanour of the applicant generally based on his visual appearance throughout the interview and the Authority was unable to do so from the audio recording of the interview. This type of informational gap is far more general than the type of informational gap that arose in ABT17, where the delegate had the opportunity to assess the applicant’s demeanour when discussing a specific claim and the Authority did not. I also accept that any assessment of the applicant’s demeanour may include consideration of his non-verbal communication.
I accept that a delegate’s immediate impressions of an applicant’s demeanour may, to a degree, influence the cut, thrust, parry, momentum or mood of an interview. For example, the delegate’s impression of an applicant’s demeanour may influence the questions asked and the robustness with which a delegate interrogates an applicant to test his or her claims. ABT17 itself may provide an example of this, with the Authority describing the questioning by the delegate in relation to the applicant’s sexual assault claim as ‘sympathetic’: see ABT17 at [28].
However, in the circumstances of this case, I cannot conclude that any informational gap based on the applicant’s demeanour in responding to other questions required the Authority, as an incident of the implied condition of reasonableness in the exercise of its discretionary powers, to invite the applicant to an interview to discuss his 25 day detention claim before the Authority rejected that claim.
There is nothing in the Authority’s reasons that would suggest that the applicant’s demeanour in his interview as he answered questions about his other claims was relevant to the question of whether his claim to have been detained for 25 days in June 2009 should be accepted. This is not a matter where the Authority has made a general adverse credibility finding that has impacted its assessments of all of the applicant’s claims. On the contrary, with the exception of the applicant’s claim to have been detained for 25 days in June 2009, the Authority has generally accepted the applicant’s credibility.
In this regard, it is notable that, in relation to all claims that the applicant discussed in the interview, the Authority agreed with the delegate’s assessment of the applicant’s credibility. In other words, in relation to the applicant’s account of past events where the delegate had the opportunity to visually assess the applicant’s demeanour, the Authority has agreed with the delegate’s assessment.
Further, there is nothing in the delegate’s reasons that explains why, in particular, it accepted the applicant’s claim to have been detained for 25 days in June 2009. The delegate’s observation that the applicant’s evidence at the interview was generally consistent with his written claims cannot be seen as extending to the claim of the 25 day period of detention in June 2009 because that was not discussed at the interview.
It is plausible, as the applicant submitted, that the cut, thrust, parry and momentum of the interview led to the Authority’s expectation that the applicant would have mentioned, if true, his claim to have been detained for 25 days in June 2009 at an appropriate point in the interview. However, the cut, thrust, parry and momentum of an interview is not limited to non-verbal communication (including that which informs an assessment of the applicant’s demeanour) and includes the verbal communication that takes place in an interview.
I do not accept that it was the applicant’s demeanour, or other non-verbal communication between the delegate and the applicant, that gave rise to the Authority’s expectation in this case. It is reasonable to infer that any such expectation on the part of the Authority may have arisen from the questions asked by the delegate at the interview. For example, even if the applicant was not asked specifically about the 25 day period of detention in June 2009 referred to in his written claims, he may nevertheless have been invited to address the claim by the delegate asking him to explain, at an appropriate point, what happened next in his narrative. Any such questions would be evident to the Authority from listening to the audio recording, and they are not the subject of any informational gap. In circumstances where there is no evidence before the Court of the transcript or audio recording of the interview, I cannot positively conclude that it was the questions asked by the delegate that gave rise to the expectation. However, in the absence of any knowledge of the questions asked at the interview, I also cannot conclude that there was anything in the non-verbal aspects of the interview, including the applicant’s demeanour, that gave rise to the Authority’s expectation that the applicant would have mentioned the 25 day detention claim if it were true.
The applicant has the onus of proof to establish jurisdictional error: BVD17 at [38]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [4]. While I accept that a transcript or audio recording of the interview would not provide evidence of the applicant’s demeanour, it would at least show the nature of the questions asked and allow an informed assessment to be made of the basis for the Authority’s expectation that the applicant would have mentioned the 25 day detention claim, if it were true. If there was nothing in the questions that could reasonably have given rise to the Authority’s expectation, it might (depending on other evidence) be open to the Court to attach greater significance to any informational gap that arose from the delegate’s ability to assess the applicant’s demeanour when discussing other claims. The transcript or audio recording would provide significant evidence of the manner in which that interview was conducted, including information about the ‘cut and thrust and parry and momentum of the interview’ to the extent that it is evident from verbal communication. When I questioned Mr Aleksov about the lack of any transcript, he quite properly acknowledged that it would be open to me to infer that there was nothing in the transcript that would assist the applicant’s case.
On the evidence before the Court, I cannot conclude that any informational gap based on the applicant’s general demeanour throughout the interview, or any other non-verbal communication, put the Authority at a disadvantage, compared to the delegate, when assessing the applicant’s specific claim to have been detained for 25 days in June 2009.
It follows that the Authority did not act unreasonably in failing to exercise its discretion, or consider exercising its discretion, in s 473DC(3)(b) of the Migration Act to invite the applicant to an interview to assess his demeanour.
The applicant’s ground does not establish jurisdictional error.
CONCLUSION
In circumstances where I have found that the Authority decision is not affected by jurisdictional error, the application must be dismissed.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 24 February 2022
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