Ecc17 v Minister for Immigration and Border Protection
[2021] FCCA 1723
•29 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ECC17 v Minister for Immigration and Border Protection [2021] FCCA 1723
File number(s): MLG 1972 of 2017 Judgment of: JUDGE RIETHMULLER Date of judgment: 29 July 2021 Date of amendment: Amended pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) on 31 July 2021 Catchwords: MIGRATION – judicial review – protection visa – grounds for review – IAA – failure to request further information – legally unreasonable -relief granted – application allowed – costs Legislation: Migration Act 1958 (Cth), ss. 473DB, 473DC, 473DE, 5AAA, Pt 7AA Cases cited: ANA18 v Minister for Home Affairs [2018] FCA 1854
ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83; (2018) 361 ALR 227
BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079
BLU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 706
BMA16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1938
BUP17 v Minister for Immigration & Anor [2019] FCCA 3193
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
CID16 v Minister for Immigration & Anor [2017] FCCA 485
DDM17 v Minister for Home Affairs [2019] FCA 1510
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551
DIN16 v Minister for Home Affairs [2020] FCA 406
DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134; (2019) 366 ALR 665
DPV18 v Minister For Home Affairs & Anor [2019] FCCA 2762
DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157
EKN17 v Minister for Immigration and Border Protection [2019] FCA 1135
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affair [2003] FCA 1044
FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369
FOA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 815
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 CR 456
Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; 146 ALR 481
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59; (2003) 73 ALD 1; (2003) 24 Leg Rep 10; (2003) ALJR 1165
Number of paragraphs: 64 Date of last submissions: 28 June 2021 Date of hearing: 31 May 2021 Place: Melbourne (via Microsoft Teams) Solicitor for the Respondents: Australian Government Solicitor Counsel for the Respondents: Mr Hoyle Counsel for the Applicant: Mr Henderson ORDERS
MLG 1972 of 2017 BETWEEN: ECC17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE RIETHMULLER
DATE OF ORDER:
29 JULY 2021
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 24 August 2017.
2.A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.
3.The First Respondent pay the Applicant’s costs fixed in the sum of $7,467 AND THAT these costs be paid directly to the applicant’s legal representative.
AND THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
JUDGE RIETHMULLER:
The applicant in this matter seeks judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) made on 24 August 2017, affirming a decision of a delegate for the Minister not to grant a protection visa to the applicant.
At the hearing before me, the applicant relied on an Amended Application filed on 6 August 2019, setting out one ground of review with three subsections to that ground (a) to (c). The applicant was represented by Counsel at the hearing. Both parties filed written Outlines of Submissions for that court event.
At the conclusion of the hearing, on 31 May 2021, I granted the parties liberty to file further material. The First Respondent filed a Statement of Agreed facts on 7 June 2021, addressing the aspects of the audio recording of the interview before the delegate. The applicant filed a Further Amended Application and supporting Further Outline of Submissions. The Amended Application still sets out the same single ground for review, but adds subsection (aa), to which the Minister filed a response on 28 June 2021.
BACKGROUND
The applicant was born on 21 June 1989 and is a citizen of Sri Lanka, of Tamil ethnicity and Hindu faith. The applicant left his home country in October 2012 and arrived at Cocos Island on 14 November 2012. An ‘Entry Interview’ was conducted on Christmas Island on 16 January 2013.
The applicant applied for an Australian Safe Haven Enterprise (‘SHEV’) visa on 16 January 2013. He was interviewed by a delegate for the Minister on 10 April 2017 and a decision was made on 14 June 2017, refusing his application. This decision was referred to the IAA for review pursuant to Pt 7AA of the Migration Act 1958 (Cth) (‘the Act’). The IAA affirmed the delegate’s decision not to grant the protection visa on 24 August 2017. That decision is the subject of this review.
Applicant Case
The applicant claims to be from [applicant’s village], Jaffna in the Northern Province of Sri Lanka, an area designated as a ‘high security zone’ by local authorities: see paragraph [4] of the Applicant Submissions filed on 7 August 2019.
At his initial interview, the applicant stated that his life was in danger in Sri Lanka, where he had been detained and beaten by the Sri Lankan Army (‘SLA’), on at least twenty-five occasions: see paragraph [3] of First Respondent Submissions filed on 28 August 2019. The applicant says the SLA subjected him to continuous harassment and mistreatment.
The applicant’s claims are set out at pages 71 to 73 of the Court Book (‘CB’) as follows:
2. I was born on 21 June, 1989 in Jaffna, Northern Province. I grew up near [V] and from the age of ten lived in [applicant’s village], [A], Jaffua, Northern Province, with my parents and siblings. By the end of 1994, I had five siblings - an older brother and two older sisters, and two younger brothers. My father was a farmer and my mother was a home-maker, until her death in 1994. My father and my five siblings still live in [applicant’s village], Jaffna, Northern Province Sri Lanka. My older brother has married and lives in a separate house in [V]. My father lives together with my two sisters and my two younger brothers. My two sisters have both now married and are preparing to move out to live with their husbands.
Relevant experiences
3.My problems first began in 2008 when I was 19 years old. There is an army base camp near [applicant’s village] where I lived with my family, plus a number of smaller army camps also nearby. The area is known as a 'high security zone'. The army would conduct regular patrols around the village and through every part of the village. They would patrol in regular groups of around ten men in each patrol, sometimes coming together in larger groups. On a number of occasions I was stopped, questioned and harassed, and frequently hit or beaten, by members of the army patrols. For example, they would stop me when I was walking home from working on my family's farm land and question me and slap me across the face when I tried to answer their questions. This happened at least fifteen or twenty times.
4. On a number of occasions, around five or six times, I was ordered to report to an army camp at a set time in the evening. It was not always the same camp - there were three camps that I ended up reporting to, including [Union Camp] - but it was always in the evening I had to be there. When I reported to an army camp they would again throw questions at me, and beat me and slap me around.
5. My older brother left [V] around 1997-98 to work in Tricamolee, where he met and married his wife. He did not return to [V] until around 2006 when he returned with his wife and two small daughters to live near my father in [V]. Because he was a married dad with two small girls, he escaped the attention of the authorities during the turbulent period from 2008 onwards. My two younger brothers were only primary school children during those years, so they also escaped the attention of the authorities.
Instances of harm
6. When I was ordered to report to [Union camp] one time they detained me and kept me there for over six hours. This was near the beginning of 2009. They beat me very badly with a wooden baton and attacked my private parts, badly bruising me all over. But they never told me why they were detaining or beating me. It was hard for me to understand their broken Tamil, but they just kept yelling at me 'tell us why do you think you are standing here?’, ‘how many people in the LTTE do you know?, ‘tell us everything you know about the LTTE’. These sorts of things would be yelled at me every time I had to report to an army camp and I was always beaten, but that time at [Union camp] was the worst time.
7. The war between the army and the LTTE intensified in early 2009 and the LTTE was defeated by the end of May 2009. The army presence in Northern Province intensified after that and every time a new command came to one of the camps near our village the harassment would begin anew. I was living in continual fear and the beatings and orders to attend the army camp continued. My sisters even had to come to beg for the army to let me go on one occasion.
8. April 14th 2012 was New Year's Day according to the Tamil Calendar and a holiday in Sri Lanka. The Sri Lankan army organised a New Year celebration for all the local people. But nearly all the local people who attended were Tamil Hindus, while the army personnel organizing the event were Sinhalese Buddhists. Around midnight when I was standing together with two of my friends listening to the music being played on the stage at the event, army personnel began rounding up a larger group of young men standing nearby. When the army mem saw myself and my two friends they came over and asked for our ID cards and asked where we were from. Because we came from an area which the army considered ' high security', the eight army officers around us decided to take us to the military base. When we arrived at the military camp the senjor officer there said 'you are from a high security area, so what were you doing out at that place at midnight?', then he slapped me and pushed my head hard against a wall. They kept up for over two hours before finally letting us go.
9. The harassment and continual stoppings and beatings got worse after the event of 14 April 2012. Almost daily I was harassed and the men doing the harassing always carried guns. I became very ill and fearful under the pressure of this continued harassment. By September 2012 I was very weak and unable to work on the farm.
10. One day in September 2012 the husband of my father's sister, who I call uncle, came to om house and said 'you are leaving this country - just follow my instructions'. Near the end of October 2012, following my uncle's instructions, I travelled by bus, together with around 35 other men, from [V] to [P] arriving in [P] around 9 pm. That night, around midnight, we boarded a small boat sailing for about three hours to a bigger boat. There were around 96 men, women and children on the larger board which took nearly three weeks to arrive on Cocos Island. During the voyage we were often scared and we were shouted at by the men in command of the boat, who were Sinhalese.
Identity documents
11. I have never owned or possessed a passport. When I boarded the boat in [P], I carried only my Sri Lankan national ID card. My Sri Lankan driver's license came to me via a friend of my family, a citizen of Australia, who visited my family on a visit to Sri Lanka. A copy of my birth certificate was sent to me by email from Sri Lanka.
Fears on return
12. I cannot return to Sri Lanka. If I am forced to return, I will be detained upon arrival because I left Sri Lanka illegally. I will be arrested and likely charged. My family cannot afford bail to obtain my release, so I will be forced to remain in detention. In detention I fear I will not only be interrogated, but also harassed and beaten, or worse, because I am a young Tamil man from northern Sri Lanka.
13. I cannot return to my home village or to anywhere near my home. The army still patrols the area and regularly calls in at the house where my father and my siblings live to harass then and to interrogate them about me and where I am. If the army finds out I have returned to Sri Lanka, and they will find out as soon as my arrival is documented, they (the army) will seek to interrogate, detain and harass me, or worse. I am now on the army records as having been a person of attention and a person who has left Sri Lanka illegally so they will definitely try to detain me.
14. The army is very powerful in Sri Lanka and many members of the police force and government are former army members and/ or have close connections to the army. Neither the civilian police nor the government have any desire or interest in protecting me. Nor is there anyone else in Sri Lanka who can offer any such protection.
15. I would not be able to live free from harm or danger if forced to move to another part of Sri Lanka. In Colombo I have no connections or supports and I cannot properly speak the dominant language in that part of the country, which is Sinhalese. Nor would I be able to feel safe in any of the Tamil speaking areas in the North and Eastern parts of Sri Lanka as these areas are now full of military personnel, and more and more Sinhalese are living there. Being a young male of Tamil ethnicity from such a high security area as [V] was means that I am immediately a red flag to the army in Sri Lanka. They would never let me live in peace. In any event, even if I am released on bail after my return to Sri Lanka, the conditions of my bail will require me to report to the police in my home area, so I will not be able to go and live anywhere else.
16. For these reasons, I seek protection in Australia.
IAA Findings
The IAA accepted that the applicant experienced harassment and beatings during the civil war, but did not accept that this occurred after 2012.
With respect to reporting in 2009 to the [Union camp] claims, the IAA noted (at paragraph [13] of the decision) that:
13. The applicant referred to having his male parts squeezed in a 2009 assault and use of bad language, hitting and kicking. While I accept that he was assaulted and harassed during the war and he had his male parts squeezed in 2009, I do not accept he was detained for 6 hours or any lengthy period as the applicant’s description was vague and lacked details. The applicant could not otherwise describe what he was asked or why he was being assaulted on that occasion or in any of the other claimed assaults since then.
With respect to the applicant’s claim of detention on Tamil New Year’s Day in 2012, the IAA found (in paragraph [14] of the decision) that:
14. His description of the 2012 New Years’ detention at the protection interview was also vague and lacked details and not consistent with his statement. For instance, he said there was a fight between two groups and they stamped on his foot with a boot. He did not mention he was taken to a military base, slapped and pushed against the wall and kept for two hours. Further, he made no mention of this is in his arrival interview.
In response to the applicant’s claims that the harassment he experienced grew worse during April to September 2012, the IAA found (at page 148 of the CB) that:
8. According to his application the applicant continued to live and work in the same area doing odd jobs such as painting, electrical work, masonry work until October 2012. He was also doing farming work until October 2012. If the applicant had been subjected to weekly or daily physical harassment, I consider the applicant would have moved from the area.
9. Secondly, if he were suspected LTTE or of interest to authorities he would have been detained and sent to a rehabilitation camp after the war, which he was not. Further, the fact applicant was allowed to continue live in or near a high security zone during the war and afterwards suggests he was not of interest to the authorities. If he was of concern it is doubtful they would have allowed him to live in such a secure area.
10. Thirdly, the applicant’s description of the harassment was not consistent and was vague and lacked details. For instance, in his arrival interview he claimed he was detained for two hours in October 2012 and was beaten with guns. However, he made no mention of this in his statement or at his protection visa interview.
11. Further, when asked to describe the harassment and provide details, the applicant provided vague, repetitive and general responses. For instance, he said he was subjected to harm without reason. When asked for more details, he said they were taken and assaulted for no reason. When asked for more information, the applicant repeated when they were on the farm they took him, sometimes weekly, sometimes every day and assaulted us. The applicant said he was never accused of anything and he did not know why he was hit or assaulted.
12. The applicant’s descriptions of the events related to events during the war such as checking the ID of residents in the area, questioning or hitting him when waiting outside the library, or when a student or when young.
13. The applicant referred to having his male parts squeezed in a 2009 assault and use of bad language, hitting and kicking. While I accept that he was assaulted and harassed during the war and he had his male parts squeezed in 2009, I do not accept he was detained for 6 hours or any lengthy period as the applicant’s description was vague and lacked details. The applicant could not otherwise describe what he was asked or why he was being assaulted on that occasion or in any of the other claimed assaults since then.
14. His description of the 2012 New Years’ detention at the protection interview was also vague and lacked details and not consistent with his statement. For instance, he said there was a fight between two groups and they stamped on his foot with a boot. He did not mention he was taken to a military base, slapped and pushed against the wall and kept for two hours. Further, he made no mention of this is in his arrival interview.
The IAA concluded that:
15. Having listened to the applicant’s interview, I consider the applicant has embellished his account of harassment and assault. I accept that he has been subject to some harassment during the war when travelling to the farm work, given he was a Tamil in the North. His descriptions about having to show ID, report and being harassed by the army, and having his private parts squeezed as a young person in the area were consistent. However, his descriptions otherwise were vague, general and inconsistent. I do not accept that he was ordered to report to the army camp or that he was assaulted or harassed daily or weekly since the end of the war. I do not accept he was singled out or targeted or accused of being LTTE. I do not accept that he was detained for 6 hours in 2009 or that he was taken to military base in April 2012 or that he was harassed daily or weekly since the end of the war. I do not accept that the army continue to harass his family or are looking for him.
16. I do not accept he was unwell and not able to do farming work as he indicated on his application that he was involved I farming and other work until October 2012. Further, there is no medical evidence that he was unwell.
17. It was evident also the applicant was able to continue to live and work in the area for all his life. He was not detained after the war and sent to a rehabilitation camp. I do not accept the applicant has an anti-government, LTTE or at risk profile.
GROUND OF JUDICIAL REVIEW
In the Further Amended Application filed on 11 June 2021, the applicant pursues one ground of judicial review in the following terms:
1. The Second Respondent constructively failed to review the First Respondent's decision according to law by:
a. failing to consider whether it ought to exercise its discretion under section 473DC of the Migration Act 1958 to get new information from the Applicant as to why:
i. he did not move from the high-security zone in [A] in Sri Lanka before October 2012;
ii. he was not detained and sent to a rehabilitation camp; and/or
iii. he was permitted to live in or near a high-security zone during the Sri Lankan civil war and afterwards, if he was of interest to the authorities; and/or
iv. certain factual claims were raised in only one and not more or all of his arrival interview, Statutory Declaration Statement, or protection visa interview;
in circumstances where it was legally unreasonable for it to so fail to do so;
aa. further and alternatively, failing to exercise its discretion under section 473DC of the Migration Act 1958 to get new information from the Applicant as to why:
i.he did not move from the high-security zone in [A], Jaffna in Sri Lanka before October 2012:
ii.he was not detained and sent to a rehabilitation camp: and/or
iii.he was permitted to live in or near a high-security zone during the Sri Lank.an civil war and afterwards, if he was of interest to the authorities: and/or
iv.certain factual claims were raised in only one and not more or all of his arrival interview, Statutory Declaration Statement, or protection visa interview:
in circumstances where it was legally unreasonable for it to so fail to do so:
b. failing to assess properly or at all the significance of "inconsistent" and/or "vague" evidence and the weight to be given to the inconsistency; and/or
c. finding that the Applicant's evidence was not consistent, vague and/or lacked details in circumstances where such failings and finding were legally unreasonable and/or contrary to law.
As identified by Counsel for the Minister, this ground is more conveniently addressed in two parts, ground 1(a) and ground 1(b) and (c). The further amended ground, 1(aa) was added after the oral hearing and is convenient to deal with separately.
Ground 1(a)
This ground for judicial review alleges that the IAA failed to consider exercising its discretion to seek further information pursuant to s.473DC the Act. The relevant provision states:
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 must be accepted that there is not a general obligation upon the IAA under s.473DC of the Act to invite a person to ‘get’ new information: see s. 473DC(2). Nor does an obligation arise simply as a result of the IAA reaching a conclusion that departs from a finding of the delegate: CID16 v Minister for Immigration & Anor [2017] FCCA 485 (‘CID16’) at paragraph [32]. The applicant, however, points out that the exercise of discretionary powers pursuant to s.473DC must nonetheless be exercised in a way that is legally reasonable: see Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (‘CRY16’) at paragraphs [81] to [82]. The applicant argues that in this case, it was legally unreasonable for the IAA not to have considered ‘getting’ new information from the applicant, effectively giving him an opportunity to comment on information the IAA relied upon in rejecting his version of events.
Subdivision C of Division 3 of Part 7AA of the Act addresses the issue of new information in proceedings before the IAA. Section 473DC(3) enables the IAA to invite a person to provide new information, orally or in writing. There is no obligation upon the IAA to request or accept new information, as is made clear in s. 473DC(2). Nevertheless, this subsection cannot be read as indicating that the discretion to obtain or seek new information could be exercised in a way that was legally unreasonable.
Section 473DE of the Act does not purport to limit the circumstances that may give rise to the need for new information under s.473DC of the Act. It simply makes the process mandatory in the limited circumstances that arise under s. 473DE of the Act.
This reading of the sections was confirmed by Thawley J in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (‘CCQ17’) at paragraph [47], where his Honour said:
In addition to s 473DC(2), a further important aspect of the statutory scheme is that s 473DE(3)(a) expressly contemplates that new information (such as new country information) can be used to affirm a decision (see s 473DE(1)(a)(ii)) without giving a referred applicant an opportunity to be heard. That does not mean that s 473DC could never be used in circumstances where the exclusion in s 473DE(3)(a) applied. Nor is to say that the particular circumstances of a case may be such that it would be legally unreasonable not to exercise or consider exercising the discretion in s 473DC despite there being no obligation (as a consequence of the exclusion in s 473DE(3)(a)) to afford the opportunity to be heard contemplated by s 473DE.
The general discretion under s. 473DC of the Act must, however, be seen in the context of the provisions as a whole, to which s.473DE is an important part. As was said in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 (‘BCQ16’) at paragraph [71]:
Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at [63], per Hayne, Kiefel and Bell JJ; [88], per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the “review material” and, subject to the statutory exceptions contained in Part 7AA, without obtaining “new information” or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.
This passage has been cited with approval in a number of subsequent decisions, for example: DDM17 v Minister for Home Affairs [2019] FCA 1510 (‘DDM17’) at paragraph [25], DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157 (‘DVO16’) at paragraph [6], BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079 (‘BLS17’) at paragraph [38], ANA18 v Minister for Home Affairs [2018] FCA 1854 (‘ANA18’) at paragraph [60], and Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 (‘CLV16’) at paragraph [12].
It is also important to note that the IAA is not obliged to provide reasons as to why it did not exercise the discretion under s.473DC.
In BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196, the High Court said, with respect to a comparable provision:
16. …the Authority, in giving reasons for that ultimate decision to affirm or remit, is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on it by s 473DC(1) or s 473GB(3).
…
39. The appellant's contention before the Full Court that the Authority failed to consider the exercise of the discretion conferred by s 473GB(3)(b) was based solely on an inference sought to be drawn from the fact that the Authority's statement of its reasons for decision contains no reference to the discretion. The Full Court did not err in rejecting that contention.
40. Given that the Authority was under no obligation to give reasons for its exercise or non-exercise of any procedural power, the mere failure of the Authority to mention the discretion conferred by s 473GB(3)(b) cannot support the drawing of an inference that the exercise of the discretion was not considered. The Authority's specific reference to taking particular country information into account as "new information", thereby indicating an exercise of discretion under s 473DC(1), lends no added support to the drawing of the inference. Having been before the delegate at the time of the decision under review, the information contained in the documents in the departmental file did not meet the description of "new information". The Authority's reference to one statutory power having been exercised in respect of one category of information cannot be taken to indicate that the Authority failed to consider the exercise of another statutory power in respect of another category of information.
Thus, one must look at the surrounding circumstances of the case in order to make a determination as to whether or not the IAA had failed to even consider inviting new information. For example, as was identified in ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271(‘ASB17’) at paragraphs [48] to [49]:
48. In this case, we do not consider the Authority’s reasons are entirely silent on this issue. There is an indication in the Authority’s reasons that it may well have considered whether to exercise the power. That indication is found in [3] of its reasons, where the Authority states:
No further information was obtained or received.
(Emphasis added.)
49. The use of the word “obtained” may suggest the Authority member turned her mind to whether or not to exercise the power in s 473DC. In the absence of any other evidence to support the inference for which the appellant contends, and in the absence of concession by the Minister, we consider the way in which [3] is expressed is a sufficient basis to conclude the appellant has failed to prove it is more likely than not that the Authority did not give any consideration to whether or not to exercise the power in s 473DC.
In the present case, the IAA said that, ‘No further information has been obtained or received’: see paragraph [4] of that decision. For the reasons given in ASB17, this statement is therefore evidence from which it can be inferred that the IAA did consider obtaining further information.
The decision of the IAA in this case can be distinguished from that considered in FOA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 815 (‘FOA18’), where White J drew the inference that the IAA had not considered the applicant's request to provide oral information as the IAA had considered various aspects of the submissions, but had not noted the relevant request: see paragraph [46].
As the Minister points out, the applicant bears the onus of showing that the IAA failed to consider ‘getting’ new information. It is a necessary first step in a claim that the failure to consider exercising the discretion was unreasonable that there is proof that the IAA member did not consider exercising the power in s. 473DC(3): ASB17 at [46]‑[49]
It is therefore necessary to consider what evidentiary basis there is for drawing a conclusion that such consideration was not made by the IAA in this case. In this regard the applicant can only point to the circumstances of the case and argue that the IAA must not have considered the exercise of the discretion as it would have been legally unreasonable not to have exercised the discretion. The logic of this argument appears to be that if it is legally unreasonable not to have exercised the discretion then it should be inferred that the IAA failed to consider its exercise (as it should be presumed that had the IAA considered its exercise, it would have exercised the discretion). However, the core question in this ground is whether or not the failure to exercise the discretion would have been legally unreasonable.
I am not persuaded that the applicant has shown that the IAA failed to consider exercising the discretion, even if it were assumed that the failure to exercise the discretion was legally unreasonable as that would simply show that the error could have been either in failing to consider or in failing to exercise the discretion. Neither seems more likely in the abstract and in this case there is evidence of the IAA having considered the exercise of the discretion in paragraph [4] of their reasons.
I therefore find that Ground 1(a) is not made out.
Ground 1(aa)
This ground was added after the oral hearing.
It is in this ground that the applicant’s substantive argument lies: whether it was legally unreasonable, in the circumstances of this case, for the IAA to decline to exercise the discretion to obtain further information from the applicant. In making this argument, the applicant relies upon all of the matters particularised:
i.he did not move from the high-security zone in [A], Jaffna in Sri Lanka before October 2012:
ii.he was not detained and sent to a rehabilitation camp: and/or
iii.he was permitted to live in or near a high-security zone during the Sri Lank.an civil war and afterwards, if he was of interest to the authorities: and/or
iv.certain factual claims were raised in only one and not more or all of his arrival interview, Statutory Declaration Statement, or protection visa interview:
In considering legal unreasonableness in the context of this case, the circumstances in CRY16 are instructive. In CRY16, the IAA accepted that the applicant was at real risk of serious harm in his local area, but concluded that he could relocate. Relocation had not been an issue before the delegate. The Full Court’s decision is well summarised in CCQ17, where Thawley J says at paragraph [44]:
44. … the failure by the Authority to consider obtaining new information lacked an evident and intelligible justification, in circumstances where:
(1) the Authority knew that it did not have information on the referred applicant’s particular circumstances and the impact upon him of relocation to Beirut;
(2) (the Authority knew that) the referred applicant was likely to have information on his particular circumstances and the impact upon him of relocation to Beirut;
(3) the Authority did not have that information because the question of relocation was not explored, or the subject of findings, by the delegate; and
(4) the Authority’s failure to consider the exercise of the discretionary power meant that it “disabled itself” from considering what was reasonable, in the sense of “practicable”, in terms of relocation.
Importantly, as was noted in in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (2018) 258 FCR 551 (‘DGZ16’):
72. … 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. … 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.
…
75. There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
In DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134; (2019) 366 ALR 665 (‘DPI17’) there was an important concession made, that the IAA had failed to consider exercising its discretion under s.473DC of the Act: see paragraph [44]. The core factual issue in that matter was whether or not the applicant had been sexually assaulted. The IAA came to a different conclusion to that of the delegate, in circumstances where the delegate had specifically relied upon the applicant's demeanour in accepting the applicant's evidence, despite there being discrepancies in the evidence given. There are two important aspects to the reasons set out in paragraph [46] of that decision:
…
(3) … if the IAA was minded to come to a different determination on the central question whether it was satisfied that the sexual assaults had occurred, unless there was available to the IAA a sufficient independent evidentiary basis to support such a determination without the IAA itself inviting the appellant to attend for an interview and conduct its own assessment of his demeanour, it was legally unreasonable for the IAA to fail to consider whether or not it should exercise its powers under s 473DC.
…
(5) … some of the inconsistencies as found by the IAA were at odds with the delegate’s separate statement to the appellant and his representative that those particular inconsistencies were, in effect, inconsequential. Consistently with what they were told by the delegate at the end of the interview, the delegate placed no weight on them. … while it was open to the IAA to come to a different view on the significance of those and other inconsistencies, in the case of the inconsistencies which the delegate viewed as inconsequential (the relevant inconsistencies), it was legally unreasonable for the IAA to fail to consider whether or not to exercise its power under s 473DC in relation to those relevant inconsistencies.
It is important to take care when reading DPI17, as it is not authority for the proposition that the IAA ought to consider requesting further information orally from every applicant, in circumstances where the IAA comes to a different view as to their credibility. The delegate in DPI17 identified the body language and oral delivery of the applicant as important factors in deciding to accept his credibility and the delegate told the applicant that his credibility was accepted despite inconsistencies, but did not set out the reasoning in this regard in the decision. The latter point, as Burley J sets out in BLU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 706 at paragraph [46] was significant, as it denied the IAA the capacity to critically analyse the credibility issues on the papers. Griffiths J, in FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 (‘FND17’) at paragraph [37] also explains that conduct of the delegate in DPI17, in saying to the applicant that the inconsistencies were not major, may have influenced the applicant not to make further submissions on that point (see also DIN16 v Minister for Home Affairs [2020] FCA 406 per Markovic J at paragraph [56]). Griffiths J points out that there is a difference between the ability to carefully analyse the evidence given on a recording, from which the IAA can make its own conclusions, and credibility findings: see paragraph [40] in FND17.
In FOA18, White J applied these principles in allowing an application in similar circumstances to those in DPI17, noting that in FOA18 the delegate had said that the applicant’s ‘responses to questions appeared spontaneous and as if being recalled from memory’, and thus demeanour observations overcame the argument that the version was otherwise ‘far-fetched’: see paragraphs [34] to [38] of that decision.
In BUP17 v Minister for Immigration & Anor [2019] FCCA 3193, Kelly J allowed an application of this type in circumstance where:
102. The delegate made an affirmative finding that the applicant had been sexually assaulted by SLA personnel. However, that finding was not made in a vacuum. To the contrary, the delegate deliberately abstained from getting further information from the applicant in relation to the sexual assault by those personnel (which occurred over a period of three hours) because the delegate accepted that recounting the incident had been extremely distressing for him, and for that reason did not press him for further details of the assaults. The delegate accepted that the assaults occurred in January 2012, that the applicant had been assaulted by several Sri Lankan officers and that the assaults had occurred over a three hour period. The delegate accepted that the applicant’s decision not to divulge the assaults to anyone was consistent with country information about the stigma associated with such assaults. Contextually, the applicant was aged about 17 years at that time. The findings above are also to be seen in the broader context that the delegate found the applicant to be a forthright and credible young man.
In BMA16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1938, Snaden J was not satisfied that the IAA had acted in a way that was legally unreasonable when not seeking further information. His Honour did note, however, a number of factors that were not sufficient for the applicant to succeed, saying at paragraph [28]:
I accept, as counsel for the appellant urged, that there are circumstances inherent in this case that incline (or might incline) in favour of an exercise of the discretion for which s 473DC of the Act provides. Chief amongst those are that the appellant was unrepresented at the Delegate Interview, that new information might have assisted the appellant to avoid the adverse credibility findings that the Authority made, and that an exercise of the discretion would likely not have involved any great burden upon the Authority. The potentially significant consequence for the appellant—resulting, as it did, in the rejection of his Visa Application—is another such circumstance.
In FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 CR 456 (11 March 2020) (‘FSG17’), the Court reviewed a number of authorities on this issue, and found:
On a number of occasions, this Court has considered whether a failure by the Authority to seek additional information from a visa applicant when conducting a review is unreasonable in the legal sense. As observed by O’Bryan J in BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079 at [31], each case turns on its own facts but it is possible to distil the following principles from the decisions:
(a) The legislative scheme of review established by Part 7AA (review by the Authority) differs from the legislative scheme of review established by Part 7 (review by the Administrative Appeals Tribunal). In particular, under Part 7, the Administrative Appeals Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments. In those circumstances, procedural fairness requires the Tribunal to inform the applicant of potentially adverse conclusions that are not obvious on the materials and the nature and content of the adverse material: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. However, those principles are not directly applicable to a review under Part 7AA given the different statutory requirements for the review. Part 7AA of the Act is an “exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews by the Authority”: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [69] (DGZ16).
(b) As a general proposition, Part 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. That is so even if the Authority makes an adverse credibility finding against the referred applicant on the basis of the evidence: DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [74].
(c) However, circumstances may arise in which it would be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant. An example is afforded by Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16). In that case, the Authority had purported to determine the review on the basis that it was reasonable for the applicant to relocate to a particular part of his home country. However, that possibility had never been put to the applicant, before or during the review conducted by the Authority. The Full Court concluded that it was legally unreasonable for the Authority not to seek further information from the applicant in circumstances where the Authority knew that it did not have, but the applicant was likely to have, information on his particular circumstances and the impact upon him of relocation (CRY16 at [82]). CRY16 was a case where additional information (as to the reasonableness of relocation) was “necessary in order to complete the review”: DGZ16 at [70].
(d) Another example is afforded by DPI17 v Minister for Home Affairs [2019] FCAFC 43 (DPI17). In that case, the delegate had made a positive assessment of the applicant's demeanour at the interview and the delegate's acceptance of certain claims by the applicant was based primarily on the delegate's assessment of the appellant's demeanour (DPI17 at [46]). Further, during the course of the delegate's interview with the applicant, the delegate indicated that certain discrepancies in the applicant’s evidence were not major and that she would not put a lot of weight on those discrepancies. In reliance upon those statements, the applicant did not address the inconsistencies in his post-interview submissions to the delegate. The Authority reviewed the decision and made various credibility findings adverse to the applicant based on the discrepancies in the evidence. The Full Court found that, in circumstances where the Authority must have been aware of the delegate’s positive assessment of the applicant’s demeanour in the interview, it was legally unreasonable for the Authority not to consider exercising its power under s 473DC to invite the applicant to give new information when it was minded to give weight to the discrepancies in the applicant’s evidence and come to a different conclusion on the claim (at [46] per Griffiths and Steward JJ and [58] per Mortimer J).
However, DGZ16 and FSG17 should not be taken ‘as establishing a general principle that the IAA is never obliged to provide the appellant with an opportunity to respond if the IAA disagrees with the delegate’s evaluation of material’: see DPI17 at paragraph [41].
In a similar vein, the application was allowed in DPV18 v Minister for Home Affairs & Anor [2019] FCCA 2762, where the IAA relied upon country information that was only published after the submissions of the applicant were sent to the IAA.
The applicant relies heavily upon the findings in CRY16, pointing to the passage at paragraph [82] of that decision, where the court identified that the applicant in that case was likely to have information on the question of relocation. In CRY16, the issue of relocation had not been previously raised with the applicant, nor considered by the delegate.
The applicant constructs his argument around a claim that the IAA has ‘assumed’ that certain consequences would flow if the applicant’s account were truthful, describing the ‘assumptions’ of the IAA as being that:
(a) if he had been subjected to weekly or daily physical harassment as claimed, the Applicant would have moved from the area;
(b) if the Applicant had been of interest to the authorities, he would have been detained and sent to a rehabilitation camp after the war - which he was not; and
(c) if the Applicant was of concern to the authorities, it is doubtful they would have allowed him to live in such a secure area.
The matters that the applicant refers to are all incidents of a critical analysis of the evidence in the circumstances of the case. The IAA could hardly be criticised for the logical observations that if a person was subject to adverse interest of authorities in Sri Lanka at that time, they would likely be detained or forced to leave the area. There is nothing new or surprising in this type of assessment of the applicant’s evidence as part of the IAA’s fact finding process: this is not a new issue (as occurred in CRY16), nor does it overlook a unique advantage of the delegate (as occurred in DPI17). More difficult is the reliance upon the proposition that the applicant could have moved away, as this had never been raised with him by the delegate.
The relevant finding of the delegate was that they accepted the applicant’s account, as it was consistent with country information. The delegate said:
Considering that the applicant comes from a part of Sri Lanka (the north) where DFAT reports there is a ‘sizeable (and largely idle) military presence’ and because the Sri Lankan state remains concerned about a possible resurgence of the LTTE, I accept his account of the types of harassment that Tamils experienced during the conflict years and still, to a lesser degree, experience now. Thus, I accept that the applicant was harassed as claimed up until he left Sri Lanka in October 2012. (footnotes omitted)
The reasoning of the IAA is contained in paragraphs [8] to [15] of the decision (as set out above). Importantly, the reasoning in paragraph [8] relies upon the hypothesis that the applicant could have relocated within Sri Lanka, in order to avoid his claimed harassment. It does not appear that this hypothesis was ever put to him, nor raised with him. In this respect, the case is very similar to CRY16, save that the issue was only one of a number of matters affecting the assessment of his credit, rather than a central factual issue. The balance of the reasons by the IAA in paragraphs [9] to [15] were open to the Tribunal Member, who had read the evidence. There is nothing in the reasons of the delegate to indicate that they relied heavily upon the presentation of the applicant as a witness (as was the case in DPI17 and BUP17).
It is apparent from the reasons of the IAA that the matters referred to in ground 1(aa) (i) were only a part of the reasons that the IAA rejected the applicant’s claims. Significant in the relevant passages of the reasons was the vagueness and lack of details in the applicant’s account, as discussed at paragraphs [10] to [15] of the IAA decision. In this matter, the IAA did not determine the case on a different basis to that considered by the delegate (as occurred in CRY16), but analysed the evidence put to the delegate. In every case where the IAA finds the evidence of an applicant lacking, there will be the possibility of an applicant presenting some explanation, if given a further opportunity to give more evidence. The reasoning of the IAA could not have been unforeseen, nor does the case have the unusual characteristics that are apparent in the decisions where applicants have been successful on this ground.
Whether the applicant could have relocated was an essential factual enquiry before a finding that a failure to relocate showed that the applicant was giving an unreliable account. As in CRY16, the applicant was uniquely placed to provide information about the ability to relocate at the relevant time. No other evidence was before the IAA on this particular issue. It is not open to the IAA to simply assume relocation is possible in the circumstances relevant here – Sri Lanka is not a developed country and nothing indicated the applicant had significant resources. The IAA required some evidence and ought to have requested it from the applicant.
Ultimately I am persuaded that the IAA acted in a way that was legally unreasonable by not seeking further information from the applicant as to the possibility of relocation in the context of this particular case.
Grounds 1(b) and (c)
These grounds complain that the IAA found the applicant’s evidence inconsistent, vague or lacking in details on the basis that such conclusions were legally unreasonable.
The applicant places considerable weight upon the decision in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83; (2018) 361 ALR 227 (‘AVQ15’) where the Full Court considered circumstances where an applicant had noted on his initial statement that it was intended only to be a summary and not a full statement of the circumstances that he relied upon. The Full Court summarised the principles as follows:
[41] For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.
(a) The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.
(b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c) Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e) Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; [2001] HCA 30 at [10] per Gleeson CJ).
(f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.
In AVQ15, the Full Court then turned to the specific claims of the applicant in that case, saying that:
44. … it is notable that there is no reference in the Tribunal’s reasons for decision to the important express qualifications set out in paragraph 1 of the appellant’s statutory declaration, nor to the transcript of his interview. Having regard to the seriousness of the Tribunal’s adverse credibility findings and to how they were arrived at, we conclude that the Tribunal simply overlooked this material. This is not a case where an inference could reasonably be drawn to the effect that the Tribunal did turn its mind to this material but concluded that it was not relevant and therefore made no reference to it in its reasons for decision. No such inference could reasonably be drawn here given the significance of the material to the critical issue being addressed by the Tribunal, namely whether or not there were inconsistencies in the appellant’s written and oral evidence.
45. … the overlooked material is potentially significant in the particular facts and circumstances here. The appellant made plain in his statutory declaration that he would provide further information to the Department in support of his application for a protection visa, which he did. That information elaborated upon some important aspects of what was set out in his statutory declaration. In determining that there were inconsistencies in the appellant’s evidence, the Tribunal focused exclusively on the contents of the statutory declaration (while ignoring the introductory paragraph) and what the appellant told the Tribunal at the hearing. Most importantly, the Tribunal paid no regard to what the appellant is recorded as having told the Departmental officer. That material had to be considered before the Tribunal could determine whether or not there were inconsistencies in the appellant’s evidence in support of his claims.
…
48. … The appellant had, after all, made clear in his original statutory declaration that he would expand upon his claims in that interview. Further, in any situation where an applicant is given an opportunity to attend an interview or engage in a review process, it is reasonable for that applicant to expect that she or he will be able to expand on, or explain, aspects of the narrative she or he has given prior to that point. This expectation and the other matters to which we previously referred (see [24]-[26] above) must be properly considered by a decision-maker in making any assessment of the applicant’s claims and evidence.
In this case there is no transcript of the evidence before the delegate to which the IAA listened, leaving the court without the ability to review all of the information that the IAA had before it. The applicant does not point to any caveats in earlier statements of the nature of that in AVQ15.
In ASB17, it was said that:
42.Differing accounts of the same event may not be “inconsistent” at all. One may be more detailed than another. One may have different emphasis. One may include a particular incident that another does not. Differences in accounts may arise from the kinds of factors to which the Full Court referred in AVQ15 at [24] and [25].
43.On the other hand, differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person’s credibility, or (perhaps more likely) reliability. Or they may not. Simply (and incorrectly) attaching the label “inconsistent” to differing accounts of an event, or differing narratives, does not make them so. Where an adverse finding is made on the basis of differences in accounts, it will usually be necessary to properly discharge the fact-finding task for a decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of the narrative or account given by a person.
The effect of inconsistencies
44.Some true “inconsistencies” may be objectively irrelevant to the fact-finding of a decision-maker. Some may be explicable, or excusable. Some may be critical to fact-finding. Some may reflect on the credibility or reliability of an applicant, and some may not. As the Full Court said in AVQ15 at [28], the decision-maker’s task requires her or him to “assess the significance of that inconsistency and the weight to be given to it”. Again, simply attaching the label “inconsistency” and moving immediately from the label to an adverse finding of credibility or reliability, may not be a rational or legally reasonable approach.
45.It is also worth recalling that complete consistency in a narrative or an account of events, especially traumatic events, or events occurring some time ago, may in some circumstances be probative of a lack of credibility. There may come a point at which a person’s narrative of past events is too complete, making no allowance for the imperfections of human observation and memory, and that may in itself demonstrate lack of reliability or credibility. This is a further illustration of why, as the Full Court said in AVQ15, where a person has been required to give more than one account or narrative of events, often separated by considerable periods of time and circumstances, care needs to be taken in weighing and assessing the probative value of various accounts.
The applicant also relies upon EKN17 v Minister for Immigration and Border Protection [2019] FCA 1135 (‘EKN17’), where Thawley J considered the IAA’s rejection of two ‘threat letters’ said to have been received by the applicant’s parents. The IAA rejected the letters on the basis that the applicant failed to mention them in his statutory declaration. However, the applicant’s case in that matter was that the letters were sent to his family and there was no claim that he had received them from his family prior to the time that he first disclosed them at a protection visa interview (at paragraph [75]). Thus, there was no logical inconsistency. It was also notable that the IAA made no express finding as to credibility (at paragraph [72] of the decision) and had accepted everything the applicant had said in other respects: see paragraph [71] of the decision. Thawley J noted, in particular, that:
76 The Authority’s reasons do not reveal:
(1)why it concluded or assumed that the appellant would have known about the letters dated 22 February 2013 and 8 September 2014 at the time he made his statutory declaration if those letters had in fact been received by his family in Iraq;
(2)whether any inquiry had been made of the appellant at the PV interview as to why the letters had not been mentioned in his statutory declaration or whether any explanation had been given by the appellant whether or not such an inquiry had been made; or
(3)why the failure to mention the two letters was so significant in the context of the case as a whole, particularly when balanced against the apparent plausibility of threat letters having been received given the history of events, including threatening phone calls, which had been accepted as truthful.
Importantly, the context of EKN17, as Thawley J set out, was that:
81A number of circumstances which were accepted by the Authority suggested that it was perfectly likely that threat letters would have been received. The Authority accepted that the incident in the taxi occurred as described by the appellant. The appellant’s claim about the incident in the taxi was supported by a detailed contemporaneous incident report prepared by the Department of Police which was consistent with the appellant’s subsequent reports about what occurred that day. The Authority accepted that the appellant was told he would have to join the AAH before his apology would be accepted. The Authority accepted that the appellant received two threatening telephone calls from the AAH after the incident in February 2013 and shortly before he fled Iraq. The first threat letter was dated 22 February 2013, not long after the second threatening phone call, but after the applicant had fled, leaving his wife and two children behind.
82There was no consideration apparently given to the consistency between the events which were accepted as truthful and the existence of the “threat letters”.
The applicant places great emphasis upon the technical meaning of the terms ‘inconsistent’, as it is explained in the judgments in EKN17 and ASB17. Some care needs to be taken in undertaking such a technical analysis. Careful technical analysis is a useful tool in many cases, but can also be a distraction if it is apparent that the decision maker had not sought to use a term in its technical sense: for example, the difference between the legal onus and evidentiary onus or the use of ‘jural correlatives’, as described by Hohfeld. It is apparent that the decision maker here was using the word in the more general sense of ‘changing’ or ‘inconstant’. In this sense the usage of the term is unremarkable.
The balance of the terms criticised by the applicant are terms commonly employed to describe a lack of credibility, when assessing a witness’s evidence. The words identify a conclusion, and without more may be insufficient reasons. However, in this case the IAA gave examples from the evidence that supported its conclusions: see paragraphs [10], [11] and [14]. The examples are not challenged as being unavailable on the evidence.
The applicant’s complaints go to the merits of the IAA’s assessment of the credibility of the evidence of the applicant, effectively seeking more detailed reasons for rejecting his credibility. Sufficient reasons appear in the decision bearing in mind the nature of the process required by the relevant section of the Act.
Importantly, it is not for the court to scrutinise with an eye keenly attuned to error, as was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; 146 ALR 481, Fang Wang v Minister for Immigration and Multicultural and Indigenous Affair [2003] FCA 1044 at [14] per Allsop J, and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59; (2003) 73 ALD 1; (2003) 24 Leg Rep 10; (2003) ALJR 1165, where the High Court said, at [147]:
147. While an obligation for an administrator to provide reasons does aid the process of curial review, the reasons must be read fairly and as a whole [FN: Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291]. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang this Court warned against the over-zealous judicial review of decisions of the Tribunal. In recognition of the fact that there is a range of legitimate approaches to decision-making and fact-finding, it was said that the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error
…
For these reasons I am not persuaded that the applicant has made out ground 1(b) or (c).
CONCLUSIONS
As I have found that the applicant has made out Ground 1(aa) the application must be allowed and relief granted. Costs ought to follow the event on the scale fee.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller. Dated: 29 July 2021
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