EFF17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1069
Federal Circuit and Family Court of Australia
(DIVISION 2)
EFF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1069
File number: MLG 2017 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 21 December 2022 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority acted unreasonably by failing to exercise, or to consider exercising, discretion in s 473DC of the Migration Act 1958 (Cth) – whether Authority made adverse credibility finding without a logical or probative basis – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5AA, 36, 473CA, 473CB, 473CC, 473DC, 473DD, 473DE, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
AYT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 597
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
CIC15 v Minister for Immigration and Border Protection [2018] FCA 795
CMP19 v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 634
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Plaintiff M174/2016 v Minister for Immigration an Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 19 September 2022 Place: Perth Counsel for the Applicant: Mr A White Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2017 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EFF17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
21 December 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 filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). On 4 September 2017 the Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The grounds relied on by the applicant raise two main issues, namely:
(a)whether the Authority acted unreasonably by failing to exercise, or to consider exercising, its discretionary power under s 473DC of the Migration Act to get new information from the applicant in relation to his assertion that a census was conducted in Vavuniya in June 2012; and
(b)whether the Authority constructively failed to exercise its jurisdiction or to carry out its statutory task by making an adverse credibility finding without a logical or probative basis, in relation to the applicant’s claim that the Ealam People’s Democratic Party (EPDP) sought him in 2012.
For the reasons explained below, I find that the applicant has not established jurisdictional error in the Authority decision and I dismiss the application for judicial review.
Background
The applicant is a citizen of Sri Lanka. He entered Australia by sea at Cocos (Keeling) Islands in September 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 27 March 2017 the applicant lodged a valid application for a protection visa. The applicant’s claims were set out in a statement that accompanied his protection visa application. The applicant claimed to fear harm from the EPDP and the Sri Lankan authorities on account of his perceived association with the Liberation Tigers of Tamil Ealam (LTTE). Relevant to the application before the Court, the applicant claimed that:
(a)he was abducted and detained by the EPDP in his home area in April 2011, was physically assaulted while he was detained and was told not to leave his home area; and
(b)he fled to Vavuniya following his release, but came to the adverse attention of the EPDP in Vavuniya after participating in a census in June 2012.
On 6 June 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
On 31 July 2017 a delegate of the Minister made a decision not to grant the applicant a protection visa. The delegate did not accept the applicant’s claim that he was abducted and detained by the EPDP in 2011 and did not make any finding in relation to the claim that he participated in a census in June 2012.
The matter was then referred to the Authority pursuant to s 473CA of the Migration Act and on 4 September 2017 the Authority affirmed the delegate’s decision.
Authority Decision
The Authority had regard to the material provided by the Secretary under s 473CB of the Migration Act. The Authority also obtained for itself the official report of the 2012 Sri Lankan census (census report) and was satisfied, for the purposes of s 473DD(a) of the Migration Act, that there were exceptional circumstances to justify considering this new information.
Relevant to the grounds raised by the applicant in his amended application to the Court, the Authority found that the applicant had fabricated his claims to have been detained by the EPDP in 2011 and to have been of ongoing interest to the EPDP in Vavuniya in June 2012. These claims were addressed at [17] and [18] of the Authority’s reasons, where the Authority said:
17.I do not accept that the applicant was detained, interrogated and physically assaulted in April 2011. In his written statement, the applicant stated that this incident took place at the hands of the EPDP. In the SHEV interview, he stated that it took place at the hands of the CID. I consider the difference in identity of those who detained the applicant to be a significant inconsistency. In these circumstances, I consider that the applicant has fabricated his claims relating to this incident so as to create a basis for his protection claims.
18.As I do not accept that the applicant was detained by the EPDP in April 2011, it follows that I also do not accept that the EPDP sought the applicant out in Vavuniya on 19 June 2012. Further, I note that the applicant claimed that a census was conducted in Vavuniya in June 2012. The report on the census obtained by me indicates that the census was conducted on 20 March 2012. In these circumstances, I consider that the applicant has fabricated his claims relating to ongoing EPDP interest so as to create a basis for his protection claims.
On the basis of these findings, and other findings in relation to the applicant’s claims, the Authority concluded that the applicant did not meet the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Migration Act.
Application to the Court
The applicant commenced proceedings in this Court by way of an application filed on 20 September 2017. This is within 35 days of the Authority decision as required by s 477(1) of the Migration Act. The applicant filed an amended application on 22 August 2022.
The applicant now relies on a further amended application filed on 19 September 2022. The further amended application was provided to the Court shortly before the hearing of this matter and was filed with leave of the Court. The further amended application raises the following two grounds of review:
1.The Authority unreasonably failed to consider exercising and/or unreasonably failed to exercise its power to get new information under s 473DC of the Migration Act 1958 (Cth) (Act).
PARTICULARS
A.The Applicant asserted that a census was conducted in Vavuniya in June 2012 (assertion): CB 102 at [25].
B.The delegate of the Minister made no finding in relation to the assertion and the Applicant was otherwise not on notice that the correctness of the assertion was in issue in his application.
C.By reference to new information not before the delegate, the Authority regarded the assertion to be incorrect: CB 280 at [18].
D.The Authority relied upon the apparent incorrectness of the assertion to conclude that the Applicant fabricated a claim to be of interest to the EPDP in 2012: CB280 at [18].
E.The Authority did not invite the Applicant to explain the apparent incorrectness of the assertion.
F.There is no evidence that the Authority otherwise considered exercising its power under s 473DC of the Act to get new information from the Applicant relating to the apparent incorrectness of the assertion.
G.It is to be inferred from particulars E and F that the Authority did not consider exercising its power under s 473DC.
H.In the premises, the Authority’s failure to consider exercising its power under s 473DC was unreasonable.
2.The Authority constructively failed to exercise its jurisdiction, or otherwise failed to carry out its statutory task, by making a credibility finding without a logical or probative basis.
PARTICULARS
A.The Applicant claimed to have been abducted and mistreated by the EPDP in 2011 (2011 EPDP claim): CB101-102 at [13]-[20].
B.The Applicant also claimed to have been of ongoing interest to the EPDP in 2012 (2012 EPDP claim): CB102 at [26].
C.The Authority found that the Applicant fabricated the 2011 EPDP claim: CB280 at [17].
D.The Authority also found that the Applicant fabricated the 2012 EPDP claim: CB280 at [18].
E.To find that the Applicant fabricated the 2012 EPDP claim, the Authority relied upon:
i. its rejection of the 2011 EPDP claim: CB280 at [18];
ii. the apparent incorrectness of the assertion: CB280 at [18].
F.Neither of the matters in particular E(i) or E(ii) provide a logical or probative basis for the Authority’s finding that the Applicant fabricated the 2012 EPDP claim.
G.In the premises, there was no logical or probative basis for the Authority’s finding that the Applicant fabricated the 2012 EPDP claim.
The evidence before the Court comprises the court book and an affidavit affirmed by Walid Babakarkhil on 22 August 2022 which annexes a transcript of the applicant’s protection visa interview with the delegate on 6 June 2017.
Ground 1
Ground 1 alleges that the Authority unreasonably failed to exercise, or to consider exercising, its discretion to get new information from the applicant under s 473DC of the Migration Act in circumstances where the Authority relied on new information, which was not before the delegate, to find that the applicant’s assertion of the 2012 census date was incorrect and to ultimately conclude that the applicant fabricated his claim to be of interest to the EPDP.
Relevant legislation and principles
Section 473DC of the Migration Act provides:
(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 well-established that the discretionary powers conferred on the Authority by Part 7AA of the Migration Act, including s 473DC, are subject to the implied condition that they be exercised reasonably: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [3].
In asserting that the Authority acted unreasonably in the present case, the applicant relies in particular on the decisions of the Federal Court in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 (CRY16) and AYT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 597 (AYT18).
In CRY16 the Full Court said at [82]:
Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
In AYT18 the Federal Court said at [30]-[31]:
30.The first appellant was not on notice that there was an issue as to whether the 2017 Individual Register Document was a false document, or an issue as to whether he had knowingly provided it as a false document to the Department. Not being on notice of those issues, there was no reason for the first appellant to seek to provide information to the Authority on those issues.
31.In the circumstances, in my view, it was unreasonable (in the sense discussed in Li [(2013) 249 CLR 332; [2013] HCA 18]) for the Authority not to exercise the power in s 473DC to get new information, namely a response or explanation from the first appellant in relation to those issues. It was evident to the Authority that the two issues had not arisen in the interview with the delegate. (The Authority’s reasons, eg at paragraph 11, indicate that it had access to, and reviewed, a record of the Protection Visa Interview.) It was also evident to the Authority that the two issues had not been raised in the delegate’s decision. Further, it would or should have been evident to the Authority that the first appellant may well have a response or explanation in relation to the two issues.
Authority’s approach in the present case
In the present case, the applicant claimed in his statement made on 5 March 2017 that he left his home area and moved to Vavuniya. He then claimed:
In early June 2012, a census was done in Vavuniya. I was at work when the census recorders came into my workplace. It was recorded on the census that I was working in a carpentry shop in Vavuniya.
The applicant claimed that shortly after this, EPDP members came to his workplace looking for him.
While the delegate made no findings about the timing of the census, as can be seen from the extract at [10] above, the Authority noted that country information suggested the census was conducted in March 2012, and considered that the discrepancy in the timing undermined the credibility of the applicant’s claims.
The Authority did not invite the applicant to comment on the country information before making these findings. The Authority did, however, indirectly observe that it was not required to put the information to the applicant for comment under s 473DE of the Migration Act. The Authority said at [5]:
… I consider that the new information is not specifically about the applicant and is just about a class of persons of which the applicant is a member, namely Sri Lankan surveyed in the 2012 census, for the purposes of s.473DE(3)(a).
Section 473DE(1) of the Migration Act requires the Authority to give to a referred applicant particulars of any new information that has been or will be considered by the Authority under s 473DD and would be the reason, or part of the reason, for affirming the fast track reviewable decision. The Authority is required to explain to a referred applicant why the new information is relevant to the review and invite the referred applicant to give comments on the new information. However, s 473DE(3)(a) provides an exception to this general rule and does not require the Authority to comply with s 473DE(1) in relation to information that is not specifically about the referred applicant and is just about a class of persons to which the referred applicant is a member. Hence, the extract from the Authority’s reasons set out in the preceding paragraph should be viewed as a finding that the Authority did not consider that it was required to invite the applicant to comment on the information pursuant to s 473DE.
The Authority reasons are silent as to whether or not it otherwise considered inviting the applicant to comment on the information pursuant to s 473DC of the Migration Act.
Did the Authority consider exercising the discretion in s 473DC?
The applicant submitted that there was no evidence that the Authority turned its mind to whether to exercise the discretion in s 473DC of the Migration Act to get new information, or to whether the applicant may have something to say about the new information in the census report or the apparent inconsistency with his own evidence. Based on this, the applicant submitted that it should be inferred that the Authority did not consider whether or not it should exercise the discretion in s 473DC.
The Minister submitted that the Authority was not required to give reasons for the exercise or non-exercise of its procedural powers under the Migration Act and that the failure of the Authority to mention the discretion conferred by s 473DC cannot support the drawing of an inference that the exercise of the discretion was not considered. The Minister further submitted that the Authority’s reference to s 473DE(3)(a) shows that the Authority considered whether to exercise a power to get new information from the applicant relating to the new country information, but observed that it was not required to do so.
On balance, I am not satisfied that the Authority failed to consider the exercise of the discretion in s 473DC to get new information from the applicant. I accept the Minister’s submissions that:
(a)the Authority is not required to give reasons for its exercise or non-exercise of procedural powers in Part 7AA of the Migration Act: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 (BVD17) at [16] and [40]; and
(b)the mere failure of the Authority to mention the discretion conferred by s 473DC does not support the drawing of an inference that the exercise of the discretion was not considered: CMP19 v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 634 at [61]; BVD17 at [40].
I do not accept that the Authority’s reference to whether it was required to invite the applicant to comment on the new information pursuant to s 473DE necessarily and positively proves that it also considered whether to exercise the discretion in s 473DC. Nor do I accept the submission Counsel for the applicant made at the hearing that it is telling that the Authority gave reasons for not inviting the applicant to comment on the information under s 473DE, but was silent in relation to s 473DC, and that it can be inferred from this that the Authority did not consider the exercise of the discretion in s 473DC. While in some cases, detailed reasons about the exercise or non-exercise of some statutory powers may lead to the inference that the exercise of another statutory power, about which the Authority remained silent, was not considered, I do not consider this to be such a case. There are many places in the Authority’s reasons where the Authority has been very brief in the expression of its findings and conclusions, including in relation to s 473DE. Given this general brevity, I do not draw any inferences based on the failure to refer to a procedural power in its reasons when the Authority was not required to give reasons in relation to procedural issues.
In the present case, there is nothing in the Authority’s reasons which would lead me to conclude that it did not consider the exercise of the discretion and I do not accept that the Authority failed to consider exercising the discretion in s 473DC of the Migration Act.
Did the Authority act unreasonably in not exercising the discretion in s 473DC?
The applicant also asserts that the Authority acted unreasonably in not exercising the discretion in s 473DC to get new information from him about the discrepancy between the census report and his evidence as to the timing of the 2012 census. While the applicant acknowledged that the Authority did not have an obligation under s 473DE to invite the applicant to comment on the information in the census report, it was still obliged to act reasonably in relation to the exercise of the discretion in s 473DC.
The applicant submitted that he was not on notice that the timing of the 2012 census was in issue in his protection visa application, and had no reason to provide to the Authority any explanation for the inaccuracy in his account of the timing of the 2012 census. The applicant submitted that a reasonable decision-maker would have appreciated that he may have something to say about the census report or the apparent inconsistency between that report and his evidence.
The Minister submitted that the applicant’s submissions tend to collapse procedural fairness principles into an unreasonableness argument and fail to recognise that the statutory scheme expressly contemplates review decisions being made on the basis of information where the applicant is unaware of the significance of that information. The Minister submitted that it is against the statutory scheme, which specifically limits the natural justice hearing rule and dispenses with any obligation to invite the applicant to comment on country information, that the applicant must show there was nevertheless an unreasonable failure to exercise the discretion conferred by s 473DC.
The Minister further submitted that in the present case, and in the context of a review under Part 7AA of the Migration Act, it was entirely reasonable for the Authority to consider the applicant’s evidence regarding the timing of the census and conclude that it was inconsistent with the information in the census report, without exercising its discretion to get new information from the applicant about that inconsistency.
I do not consider that the Authority acted unreasonably in this matter by not inviting the applicant to comment on the information in the census report or the apparent inconsistency between the information in that report and the applicant’s evidence.
The Authority did not have any procedural fairness obligation to invite the applicant to comment on the information in the census report. While it remained open to the Authority to get new information using the discretion in s 473DC, and its discretion under that section needed to be exercised reasonably, any assessment of the reasonableness of the exercise or non-exercise of that discretion is informed by the statutory scheme relevant to the exercise of the Authority’s jurisdiction. This was explained clearly in relation to s 473DC by Thawley J in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17), which was referred to by Counsel for the Minister at the hearing. In CCQ17 Thawley J said at [45]-[49]:
45.The question of legal unreasonableness is to be approached through the lens of the specific statutory scheme and not through the lens of the principles of natural justice unaffected by statute…
46.The discretion in s 473DC(1) and (3) must be read with s 473DC(2) which provides that the Authority “does not have a duty to get, request or accept, any new information” whether requested to do so or in any other circumstances. Whilst this does not deny that the Authority must act reasonably in exercising or considering the exercise of its discretionary powers, what is reasonable must be assessed according to the statutory scheme…
47.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 the 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.
…
49.These features of the statutory scheme are relevant to the identification of the scope and purpose of s 473DC in order then to evaluate whether the discretion was exercised in a way which was legally reasonable…
In finding that the Authority did not act unreasonably by not exercising the discretion in s 473DC, I also have taken into account the factual context in which the Authority came to rely on the information in the census report. This includes consideration of the delegate’s findings.
While the delegate did not accept that the applicant had been abducted and physically assaulted in 2011 or that he was of any adverse attention to the authorities for any reason at the time he left Sri Lanka, she did not make any specific finding about his claim to have participated in the 2012 census or that EPDP members came looking for him at his workplace after that.
The Authority likewise rejected the applicant’s claim to have been detained and physically assaulted in 2011 and, in the Authority’s view, it followed from that finding that the EPDP had not sought the applicant in 2012. The Authority then referred to a further reason for rejecting the applicant’s claims to have been sought by the EPDP in 2012, namely, that the applicant claimed he had participated in the census in June 2012, whereas the census report indicated that the census was conducted in March 2012.
In reaching this finding the Authority had before it the applicant’s written claims and the information in the census report. It did not need further information to complete its statutory task and it did not need to hear from the applicant to understand the information in the census report. This is not a matter such as CRY16 where the Authority effectively disabled itself from completing its task by not seeking from the applicant relevant information which the Authority did not have and which it knew or ought to have known the applicant would have. Rather, this is a case where the applicant gave evidence about when he participated in a census, the Authority had other evidence that caused it to doubt the applicant’s evidence and the Authority made findings accordingly. The Authority was not required, as a matter of legal reasonableness or otherwise, to inform the applicant of the specific reservations it formed about his case, or to provide an opportunity to him to respond to those reservations: DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 at [72], [74].
I acknowledge that there are some similarities between the present case and AYT18, in that the specific issue the subject of the unreasonableness allegation was not the subject of discussion at the interview with the delegate or the subject of consideration in the delegate’s reasons. I also acknowledge that in determining whether the Authority acted unreasonably in the present case, it is appropriate to apply the general principles to the facts of the present case and not to simply identify particular factual similarities and differences between individual cases: DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43 at [37]. In the present case, it is the matters I have already discussed above that lead me to the conclusion that it was not unreasonable for the Authority not to seek further information from the applicant, notwithstanding that the timing of the 2012 census was not discussed with the applicant at the protection visa interview or addressed in the delegate’s reasons. In particular, it is the statutory scheme and the lack of any procedural fairness obligation to invite the applicant to comment on the census report, along with the Authority having sufficient evidence to make a finding and not needing to advise the applicant of any specific reservations about his case that have informed my conclusion.
In all the circumstances of the present case it was reasonably open to the Authority to make the findings it did without seeking further information from the applicant. It follows that the Authority has not unreasonably failed to exercise the discretion in s 473DC of the Migration Act to seek further information from the applicant.
Ground 1 is not established.
Ground 2
Ground 2 also asserts jurisdictional error in the Authority’s finding at [18] of its reasons, this time on the basis that the finding that the applicant fabricated his claims to have come to the EPDP’s attention in 2012 was made without a logical or probative basis.
Relevant principles
The applicant relies on CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146, ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 and CIC15 v Minister for Immigration and Border Protection [2018] FCA 795 to support the proposition that credibility findings can be amenable to judicial review, including on the basis that they are made without a logical or probative basis. I accept the proposition, which is now well-established in administrative law.
To establish that a finding was made without a logical or probative basis requires more than disagreement with a finding or that another different finding might be open to the decision-maker. Rather, as Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131] and [135], a decision will be illogical or irrational if there is only one conclusion open on the evidence and the decision-maker did not make that conclusion, or if the finding made by the decision-maker was not open on the evidence available to the decision-maker, or if there is no logical connection between the evidence and the inferences or conclusion drawn.
This remains a high threshold.
Was the Authority’s finding made without a logical or probative basis?
The applicant submitted that neither of the following two bases was a logical or probative basis for the Authority to conclude that he fabricated the 2012 EPDP claim:
(a)earlier in its reasons, the Authority rejected the applicant’s claim to have been abducted and tortured by the EPDP in 2011; and
(b)the applicant asserted that the 2012 census was conducted in June 2012, whereas the census report suggested that it was conducted in March 2012.
I address each of these bases in turn.
In relation to the first basis, the applicant submitted that it does not follow from the Authority’s non-acceptance of the applicant’s claim that he was abducted and tortured in 2011 that the claim to have been sought by the EPDP in 2012 must also be fabricated. The applicant submitted that the EPDP may nevertheless have sought the applicant in Vavuniya in 2012 on the basis of his profile even if they did not abduct him in 2011. In oral submissions, Counsel for the applicant submitted that besides the identity of the perpetrators being the EPDP, there was no direct connection between the 2011 incident and the 2012 incident. Counsel for the applicant submitted that the applicant did not claim that the abduction in 2011 was the reason he was being pursued in 2012 and therefore the non-acceptance of the 2011 incident could not have logically borne upon the question of whether the 2012 incident occurred.
The Minister submitted that there is no illogicality in the Authority relying on the rejection of the 2011 claim because the applicant’s claim to have been detained by the EPDP in April 2011 was the factual predicate of the applicant’s claim to have been sought out by the EPDP in June 2012. In the absence of that factual predicate, it was logical for the Authority to reject the claims relating to ongoing EPDP interest. The Minister further submitted that it was not illogical for the Authority to have discounted any suggestion that the EPDP might have sought the applicant in 2012 on the basis of his profile, even if they did not abduct him in 2011, in circumstances where the Authority considered any previous incidents that might cause the applicant to have a profile to be ‘remote in time and minor’.
I accept the Minister’s submissions in relation to the first basis of the Authority’s reasoning for finding that the applicant fabricated his claim to have been sought by the EPDP in June 2012.
The applicant’s only claim to have faced harm in the past from the EPDP was the alleged abduction in 2011. Once that claim had been rejected, the only incidents that the applicant had referred to in his claims prior to 2012 that could be the basis of any adverse profile were:
(a)growing up, the government would assume Tamil males from the north were associated with the LTTE and would round up and interrogate them whenever there was an incident involving the LTTE;
(b)the applicant’s sister was recruited by the LTTE in 2004 and the applicant’s brother was recruited by the LTTE in 2007;
(c)between 2005 and 2009 the LTTE occupied the applicant’s family’s house without their permission; and
(d)in 2009 the applicant and his family were displaced and lived in refugee camps and during this time he and his family were questioned multiple times by the Criminal Investigation Department.
The Authority accepted each of these claims but found the incidents to be remote in time and minor and was not satisfied that these incidents would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities now or in the reasonably foreseeable future.
In circumstances where the Authority found that all the accepted incidents that could lead to the applicant having a profile were minor, it was open to the Authority to find that the rejection of the applicant’s main claim to have come to the attention of the EPDP and suffered harm at their hands in 2011 was a basis for also rejecting his claim that the EPDP sought him in 2012. I accept the Minister’s submission that the applicant’s claim to have been abducted in 2011 was a factual predicate of the claim to have come to the attention of the EPDP in 2012. The applicant did not refer in his claims to having had any interaction with the EPDP or to have suffered harm from the EPDP prior to the 2012 census other than his claim to have been abducted, detained and physically assaulted in 2011. I accept the Minister’s submission that the manner in which the applicant has articulated his claims, in particular, his expressed fear after his release that the EPDP might kill him, that he would be detained and tortured again and the suggestion that this fear was why he relocated to Vavuniya, suggests that the applicant’s 2011 and 2012 claims relating to the EPDP were related in some way. In these circumstances, I do not accept the applicant’s submission that the rejection of the 2011 claim could not have logically borne on whether the 2012 claim should be accepted.
A different decision-maker may not have relied on the rejection of the applicant’s claim to have faced harm in 2011 as a basis for rejecting his 2012 claim, but the line of reasoning adopted by the Authority was open on the evidence before it. It was not illogical or irrational.
In relation to the second basis for rejecting his claim to have been sought by the EPDP in 2012, the applicant submitted that any inconsistency between his evidence and the census report is so minor or trivial that it could not have been a rational basis for finding the claim to have been fabricated. The applicant submitted that the inconsistency is both minor in time and minor in its consequences for the cogency of the applicant’s claim. The applicant claimed that the census took place in June and then claimed to have been pursued by EPDP members sometime later as a result of his participation in the census. The applicant submitted that it is of no consequence to the plausibility or internal coherence of his claim if the census was in fact some months earlier. The applicant further submitted that the probative value of the apparent inconsistency must necessarily have carried less weight in the absence of the Authority having sought any explanation from the applicant.
The Minister submitted that the timing of the census was important to the applicant’s case. On the applicant’s claims, this was the catalyst for the events which caused the applicant to flee Sri Lanka. His claims were in effect that shortly after the census the EPDP located him, he went into hiding for two months, and then fled the country. The Authority had regard to information that undermined the urgency of that chronology, namely, that the census occurred some months earlier. That cannot properly be described as a minor or trivial matter. Counsel for the Minister also submitted that the 2011 and 2012 claims were clearly connected.
I again accept the Minister’s submissions rather than the applicant’s submissions. Another decision-maker may well have placed less or no weight on the inconsistency in the timing of the census, but it remained within the area of decisional freedom for the Authority to rely on the inconsistency to further doubt and reject the applicant’s claim. It was open to the Authority to view the timing of the census as important, particularly in circumstances where, on the applicant’s claims, the catalyst for him going into hiding was the EPDP searching for him in mid-June 2012 after he participated in the census in early June 2012.
For these reasons, I do not accept that the Authority’s finding that the applicant fabricated his claim that the EPDP sought him in 2012 was made without a logical or probative basis.
Conclusion
In circumstances where the applicant has not established jurisdictional error in the Authority decision, the application for judicial review must be dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 21 December 2022
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