Ekn17 v Minister for Immigration
[2020] FCCA 3022
•11 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EKN17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3022 |
| Catchwords: MIGRATION – Application for judicial review of decision made by the Immigration Assessment Authority – whether Authority acted unreasonably – whether Authority failed to exercise s.473DC – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473C, 473CC, 473DC. |
| Cases cited: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 |
| Applicant: | EKN17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2640 of 2019 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 3 and 4 August 2020 |
| Date of Last Submission: | 4 August 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 11 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Solicitors for the Applicant: | Stamford Law |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue, quashing the decision of the second respondent (Authority) dated 23 September 2019 to affirm the decision of a delegate (delegate’s decision) of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise Visa.
A writ of mandamus issue, remitting the matter to the Authority and requiring it to determine according to law the application referred to it by the Minister under s.473C of the Migration Act 1958 (Cth) for review of the delegate’s decision.
A writ of prohibition issue, prohibiting the Minister and his delegates, servants and agents from acting upon or giving effect to the Authority decision.
The Minister pay the applicant’s costs as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 2640 of 2019
| EKN17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (“Authority”), made on 23 September 2019, which affirmed the decision of the delegate of the Minister not to grant the applicant a Safe Haven Enterprise Visa (“SHEV”).
Background
The applicant is a citizen of Iraq who arrived in Australia as an unauthorised maritime arrival on 14 March 2013.
On 6 March 2016 the applicant applied for a SHEV on the basis that he feared serious harm from members of the group Asa’ib Ahl al-Haq (“AAH”) by reason of his imputed political opinion and for being a failed asylum seeker from the West.
The applicant raised the following claims in support of his application for a SHEV:
a)In January 2013 he was working as a taxi driver. He drove three passengers to the city centre when one passenger initiated a conversation with him about the leaders of Shia Muslim militant groups operating in Iraq. He was asked about his opinion on Moqtada Al-Sadr. He insulted Al-Sadr and the three passengers agreed with his assessment. He was then asked about Qais Al-Khazali (leader of Shia militia group AAH) and the applicant replied that he was worse than Al-Sadr. One of the passengers identified himself as a leader of the AAH;
b)The AHH leader threatened to cut off his tongue because he used it to insult the leader of AAH. A gun was also held to the applicant’s head;
c)He apologised to the passengers, however was told that they would not accept his apology unless he joined their militia. The AAH leader also photographed him, his vehicle and took his phone number; [1]
d)He received two phone calls; the first call was two days after the incident in the taxi and the caller demanded for him to join the militia and meet him at a specified location. The second was received two days after the first call. On this occasion the caller told the applicant that he would kill him and “finish him off”;
e)On 14 February 2013 the applicant fled Iraq; and
f)In August 2013 the applicant’s family found a letter from AAH which read “Death is coming, even after a while”. [2]
[1] The applicant reported the incident to the police, who wrote an incident report and advised the applicant that nothing more could be done, see CB: 98
[2] The applicant presented a further two letters dated 22 February 2013 and 8 September 2014, purportedly from AAH, to the Minister’s delegate.
On 22 May 2017 the applicant’s temporary protection visa was refused by the Minister’s delegate, as the applicant did not meet the criteria set out in s.36 of Migration Act 1958 (Cth) (“the Act”). The delegate largely accepted the factual claims of the applicant in his application, however did not accept that the AAH sought to recruit him or that he received letters from the AAH, threatening him for not joining their group.[3]
[3] CB: 107 - 108
On 25 May 2017 the delegate’s decision was “fast tracked” and referred to the Authority pursuant to Part 7AA of the Act.
On 20 June 2017 the applicant’s representative provided written submissions to the Authority in respect of the applicant’s claims, mostly clarifying that the AAH demands for the applicant to join their militia was not a matter of recruiting more members but was rather a tactical demand to punish and humiliate him for what he had said about their leader.
On 1 September 2017 the Authority determined the applicant’s case. It affirmed the decision of the delegate not to grant a temporary protection visa. On 30 September 2017 the applicant filed an application in the Federal Circuit Court for judicial review of that decision.
A Judge of this Court heard the application (as amended) and dismissed the application with cost on 13 November 2018. The applicant filed an appeal to the Federal Court in respect of the orders dismissing the application. On 25 July 2019 the Federal Court allowed the appeal and made orders setting aside the orders made by this Court, and in lieu thereof issued in the first instance a writ of certiorari directed to the second respondent to quash the decision of 1 September 2017 and a writ of mandamus directed to the second respondent to exercise the power under s.473CC of the Act in accordance to law.[4]
[4] CB: 143
The matter was remitted back to the Authority for reconsideration of the applicant’s application for a protection visa. On 5 August 2019 the applicant’s representative provided a further statutory declaration and translation of some country information to the Authority.
On 23 September 2019 the Authority affirmed the decision of the Minister’s delegate. Again, the applicant filed an application in the Federal Circuit Court on 14 October 2019 seeking judicial review of the decision of the Authority to refuse the application, which is now the subject of these proceedings.
The Authority’s decision and the applicant’s challenge to it
The Authority summarised the applicant’s claim as follows: [5]
·He originates from [city centre] and is adherent to Shia Islam.
·The applicant previously worked as a taxi driver. In early 2013 he collected three passengers in [city centre] and drove them towards the city centre. On the way the passengers initiated a conversation about various leaders of different Shia militias that were active in southern Iraq. The passengers made fun of Moqtada Al-Sadr, the leader of the Mehdi Army, and when asked for his opinion the applicant agreed with them and insulted against Al-Sadr. He was then asked for his views on of Qais Al-Khazali, the leader of Asa'ib Ahl al-Haq (‘AAH’). The applicant insulted him by stating he was even worse than Al-Sadr. This caused his passengers to become very angry. One of the passengers threatened to cut his tongue off and produced a gun from underneath his shirt. This passenger indicated that he was an AAH leader. The applicant became scared and apologised but his apology was not accepted. He was told that the apology would only be accepted if he joined the AAH. He dropped the passengers off near a cemetery in central [city centre]. The AAH leader photographed the applicant and his vehicle and took his phone number.
·The applicant reported the incident to the police. They wrote an incident report but told him that nothing more could be done. A copy of a police report was provided to the delegate at interview in 2017.
·In February 2013 he received two phone calls from an unknown person asking him to join the AAH. During the second call the caller threatened to kill him. The applicant left Iraq on 14 February 2013.
·During August 2013 his family received a threat letter which stated that “death is coming even after a while”, they did not keep the letter. Two further threat letters, also said to have been received by his family, were provided to the delegate at interview in 2017.
·In July 2018 there were demonstrations at the AAH office in [city centre] which resulted in the death and injury of some demonstrators. One week after this event members of the AAH went to the applicant’s family’s home in [city centre] looking for him. Because of this the applicant believes he is still on an AAH target list.
[5] CB: 159
Ultimately, the Authority was not satisfied that the taxi incident occurred as claimed or that the applicant had ever come to the adverse interest of the AAH. The Authority found that the applicant had fabricated the claims against the AAH in their entirety.
The Authority’s decision was based on:
a)The delay in mentioning the first and third threat letters;[6]
b)The delay in mentioning the police report or that the applicant had any dealings with the police,[7] together with a finding that the report was not a genuine document;
c)The assertion in the entry interview that he did not know why he was targeted;[8]
d)The failure to mention the AAH or the taxi incident in the interview;[9]
e)What the Authority considered to be a rehearsed verbal narrative presented at the interview with the delegate; [10] and
f)The acquisition of the applicant’s passport in 2012, indicated to the Authority that he had already decided to leave Iraq well before the alleged taxi incident.[11]
[6] CB:163 at [25]
[7] CB:163 at [25]
[8] CB:163 at [25]
[9] CB:163 at [25]
[10] CB:163 at [25]
[11] CB: 163 at [25]
In Ground 1 the applicant asserts that the Authority fell into jurisdictional error in making findings that the taxi incident did not occur as claimed because of the “rehearsed nature of his testimony” at the interview with the Minister’s delegate. The applicant asserts that the decision-maker overlooked or misunderstood evidence of a fundamental nature, namely the fact that the applicant was responding to a question by the interviewer when using the phrase “that’s the whole story”.
In Ground 2 the applicant asserts that in circumstances where the Authority was considering making adverse findings in respect of a significant matter, namely the veracity of the taxi incident, the Authority’s failure to invite or consider inviting the applicant to give new information under s.473DC was legally unreasonable.[12] The applicant argues that the Authority’s failure to exercise such discretion can be inferred from its narrow consideration of s.473DC in respect of the issue of the delayed disclosure of the first and third threat letters, and whether to seek an explanation from the applicant about that specific issue.
[12] The applicant argues that the Authority’s failure to exercise such discretion can be inferred from its narrow consideration of s.473DC at [18] of the Authority’s reasons.
In Ground 3 the applicant asserts that the Authority fell into jurisdictional error in making findings that the taxi incident did not occur as claimed because of the “assertions in the entry interview that he did not know why he was targeted and the failure to mention the AAH or the taxi incident in that interview”.
The applicant, in carefully drafted written submissions supplemented by lengthy oral submissions, provided a forceful argument as to why the Authority erred in the manner alleged. The respondent, in also carefully considered oral and written submissions, made persuasive arguments as to why the applicant had not established jurisdictional error. The fact that these reasons for judgment do not address each of the arguments raised does not mean that those arguments were not considered.
Relevant Principles
Respectfully, the Court adopts the summary of relevant principles as stated by Full Court of the Federal Court as follows:[13]
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. …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.
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.
(citations omitted)
[13] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [41]
Determination
In determining whether the present decision of the Authority was affected by jurisdictional error it is not only important to break down the Authority’s decision into its key components as noted earlier in these reasons,[14] but also to consider the decision as a whole.
[14] As noted at paragraph 14 above
Having regard to the decision as a whole, it is clear that the Authority’s view as to the rehearsed nature of the verbal narrative presented by the applicant at the delegate’s interview, permeated all of the other findings the Authority made. While said that this of itself was not determinative, “the rehearsed nature” of the applicant’s testimony caused the Authority “to doubt the veracity of his evidence” as a whole.[15] It is a finding which was central and crucial to Authority’s decision.[16] The question then is, whether it was illogical, irrational or legally unreasonable for the Authority to make that finding?
The Authority’s view as to the rehearsed verbal narrative presented at the interview with the delegate
[15] CB:160 at [16]
[16] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [45]-[47]
The Authority:
a)Found that the applicant recounted “quite consistently” the taxi incident when he reported it to the police on 30 January 2013, in his 2 March 2016 statement with his visa application and at the 20 March 2017 interview with the delegate;[17]
b)Was of the view that the applicant’s evidence at the interview with the delegate was “rote learnt and not at all spontaneous”; and
c)Was of the view that that the applicant’s evidence to the delegate was memorised and repeated because of the way in which he stopped the narrative and that he had “exhausted” his rehearsed account at that point.
[17] CB:160 at [15]
While the Authority recognised that on one view the consistent and unwavering evidence regarding the taxi incident could suggest that the applicant was providing a credible account of actual events, the Authority did not take such a view of the applicant’s evidence. Rather the Authority took the view that the account provided to the delegate was rehearsed and therefore fabricated (as were the other similar accounts provided by the applicant).[18]
[18] This was the ultimate conclusion, based in part on the finding that the story was rehearsed.
Apart from the fact that the three accounts of the taxi incident provided by the applicant were not identical and indeed, that the different accounts appear to have some differences in the chronology and at times even the gist of what was said, the mere apparent rehearsal or recitation of a story cannot of itself mean that the story was fabricated.
There are other explanations as to why a recounting of a narrative might appear rehearsed, one of which is that the story has been told a number of times or even that the applicant, no doubt knowing how important the incident is, wants to ensure that his narrative is without fault.
The Authority did not consider other possible reasons or explanations as to why the story might appear to have been rehearsed and it did not consider the differences in the various recounts of the story given over the years when coming to the conclusion that the narrative provided to the delegate appeared rehearsed, and was therefore fabricated.
Moreover, the Authority’s conclusion that the manner in which the applicant stopped his account and stated “that’s the whole story if you have any questions I’m happy to answer” fails to take into account that the “whole story” was the “whole story” in respect of the question which was posed about the taxi incident.
The taxi incident was introduced by the delegate in earlier questions, when the delegate asked “Ok so in your written statement you talk about the incident where you were driving a taxi you picked up some passengers and there has been an incident in that car, but prior to the incident did you have any issues?” Then asked again “Before the incident you’re talking about?”
The applicant’s long and seemingly (to the Authority) rehearsed answer was in fact to the question, “alright so we’ll begin there then, can you tell me in detail what happened when you picked up the three men and took them to the city centre?” That question itself was clarified by the applicant and it was confirmed that the delegate wanted an account of the taxi incident in detail.
The delegate later said “we’ll talk about the phone calls later on”. This is an indication that the delegate herself was aware that the long answer given by the applicant was limited to the detail of the taxi incident itself.
The delegate took the opportunity of asking the applicant some further questions. In answer to a question of why the man involved in the taxi incident would harm the applicant years later,[19] the applicant said “…I’ve got lots of letters and papers to proof [sic] that they sent it to me to my house”.
[19] Affidavit of applicant, filed 30 March 2020, at page 6 of transcript of interview with delegate
This is a matter which the Authority failed to note in its reasons when coming to the adverse conclusion that the applicant did not mention three written threats until he was asked by the delegate to do so. While there were later specific questions from the delegate asking the applicant to expand upon the issue of the letter in August 2013, which was referred to in his written statement, the answers to those questions was not the first time that the applicant mentioned the written threats to the delegate.
While the mere failure to mention a matter in the reasons for the decision does not of itself mean that there was a lack of consideration of the matter, the reasons incorrectly state that the applicant did not mention the written threats until he was asked by the delegate about them.[20]
[20] CB:160 at [16]
The consequence of failing to engage in the process of weighing up any of the matters referred to above, is that it leads to the conclusion that the Authority’s decision was sufficiently arbitrary to warrant it being classified as legally unreasonable. Furthermore, such failures meant that the Authority did no undertake a “review” of the kind required by Part 7AA.[21]
[21] EKN17 v Minister for Immigration & Anor [2018] FCCA 3589 at [89]
Lastly, the delegate found the applicant’s story to be believable. The delegate’s decision dated 22 May 2017 reads:
The applicant appeared to recall the details of these events from experience, such that I accept they genuine occurred… I accept he was threatened with a weapon after insulting the AAH leader and that he sought police protection following the incident…
The delegate is the person who had the opportunity of not only listening to the applicant’s evidence, but also of observing the applicant while he gave his evidence. The Authority only listened to the interview with the delegate.[22]
[22] These matters are addressed in more detail, albeit in respect of a different argument, later in these reasons.
While the Authority is not bound by the delegate’s findings, in light of the delegate’s acceptance of the applicant’s evidence and for the reasons the delegate gave, the Authority’s adverse findings on the basis of the audio recording of the applicant giving evidence in Arabic, contributes further to the unreasonableness of the Authority’s decision as a whole.
The delay in mentioning the first and third threat letters
The Authority noted that in his visa application, the applicant claimed that his family had received a letter in August 2013 which read “Death is coming, even after a while”. This letter was not kept by the applicant’s parents. The applicant later presented in support of his visa application, two other letters from the AAH dated 22 February 2013 and 8 September 2014. The Authority found that there was no apparent reason why the applicant’s family would tell him about the August 2013 letter but not about the other letters prior to the lodgement of the visa application by the applicant in 2016. The Authority assumed that the applicant’s family would have told him about the letters either promptly after each was received, or at least informed him of all the letters at the same time. The basis for this assumption was not outlined in the Authority’s reasons, nor did the Authority consider whether there was a plausible explanation for the applicant’s family acting in this manner.
The Authority recognised that it could invite the applicant to provide an explanation as to the delayed disclosure of the first and third threat letters. However, it declined to do so. It said:[23]
The applicant has not made any submissions on this issue following the Federal Court judgement on his matter, including in the statutory declaration dated 3 August 2019 which was provided after that judgement was handed down. He and his lawyer had the opportunity to address this issue, which clearly arose in the judicial consideration of his matter, and have made no attempt to do so.
[23] CB: 161 at [18]
This reasoning is flawed. The Federal Court held “…unlike the Authority, the delegate had not apparently been concerned about the appellant’s failure to mention the two letters in the statutory declaration”. [24] If, like in its earlier decision, the Authority was again concerned about this delay, having regard to what the Federal Court had said, the Authority ought to have sought an explanation, by exercising its discretion under s.473DC, from the applicant as it was the Authority and not the applicant, who recognised this as a live issue.
[24] EKN17 v Minister for Immigration and Border Protection [2019] FCA 1135 at [78]
For all the applicant knew, it was a matter which had not been a concern to the delegate and just because it had concerned the Authority in its earlier decision, it did not mean that it would be a concern to the Authority this time round (as it was conducting a review of the delegate’s decision, not its own).
The Authority knew that it did not have, but that the applicant was likely to have, information concerning the delay.[25]
[25] FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural [2020] FCAFC 29 at [59]
The delay in mentioning the police report or that the applicant had had dealings with the police
The Authority noted that the 2013 police report was not mentioned in the visa application, which was prepared by the applicant with the help of his lawyer in 2016. Given that the applicant claimed to have been in possession of the report in 2013 and that he considered it to be proof of the events in question, the Authority considered it significant that neither the applicant nor his lawyer mentioned this document in the visa application at all.
The absence of the mention of the 2013 police report in the visa application, did not appear to be a concern to the delegate during the interview with the applicant. Indeed, the delegate accepted that the applicant had reported the matter to the police.
The Authority knew that it did not have, but that the applicant was likely to have, information concerning the police report and why it was not produced or mentioned earlier.[26]
[26] Ibid
The assertion in the entry interview that the applicant did not know why he was targeted
The applicant did not assert at the entry interview that he did not know why he was targeted as found by the Authority.[27] The applicant had said that he was not sure, but that he thought it was because they wanted him to join their militia. This answer is not inconsistent (in the sense that it is irreconcilable) with the taxi incident. It was simply not the whole explanation as to why he was threatened.
[27] CB:162 at [22]
The applicant claimed later that he would be killed if he did not join the AAH, and that he had to join the AAH because of a perceived insult to the leader of the AAH.
At the entry interview, the applicant was asked to explain “In one or two sentences” why he decided to leave Iraq. He answered, “threats towards me and my family”. When asked why he was threatened, the answer was “alright I’m not sure what’s the reason but I think it’s just because they want belonging to groups or they just making sure belonging to a group”. He was later asked why he was threatened and he answered “I don’t know exactly why but they wanted me to join them and I refused they start threatening me.”
While there is no doubt that the applicant knew exactly why he was targeted, that is, because of what occurred during the taxi incident, the answers that he provided did not exclude there being a further or primary reason as to why he had to join the AAH.
The failure to mention the AAH or the taxi incident in the interview[28]
[28] Also Ground 3 of the Application
The Authority identified its concern about the failure to mention the taxi incident or the AAH during the entry interview early in its reasons. It said “The absence of any reference to the taxi incident or the AAH in the entry interview, and his clear suggestion on two occasions that he was not sure of the reason why he was targeted, causes me serious doubt”.
The purpose of the entry interview is not to obtain a detailed description of the applicant’s claims.[29] The entry interview was a quick affair with limited questions being asked.
[29] Minister for Home Affairs v AYJ17 [2019] FCA 591 at [41]-[42]
The Authority’s reasoning process and the conclusions it reached in respect of the applicant not mentioning the AAH during the entry interview were illogical for the following reasons:
a)The fact that the applicant was not precluded from mentioning the AAH during an interview does not mean that the AAH was not involved in the manner he asserted;
b)The applicant mentioned militia; and
c)He was not asked to name the militia.
Furthermore, in the context of the questions and answers at the entry interview, the Authority’s conclusion that the applicant’s claim concerning the AAH was invented because he did not refer to the AAH was illogical.
The Authority’s reasoning process and the conclusions it reached in respect of the applicant not mentioning the taxi incident during the entry interview were illogical for the following reasons:
a)The fact that the applicant was not precluded from mentioning the taxi incident during an interview does not mean that the taxi incident did not happen in the manner asserted by the applicant;
b)The answer provided by the applicant that he left Iraq due to threats to him and his family, was accurate, as was the answer that it was the militias who made the threats.
c)The taxi incident was the background leading to the threats. It was the threats made over the phone which caused the applicant to flee, not the threats made during the taxi incident.
The answers given by the applicant at the entry interview and the taxi incident are reconcilable. Likewise, the answers given by the applicant at the entry interview and his claim about the AAH are reconcilable.
The Authority’s “concerns” about the AAH and the taxi incident were matters underpinning the Authority’s conclusion that the applicant had fabricated the taxi incident.
Acquisition of Passport prior to taxi incident
The Authority found that the applicant’s acquisition of a passport in mid-2012 indicated that he had already decided to leave Iraq before the alleged taxi incident.
The acquisition of a passport does not per se indicate a decision to leave a country. It might for example point to a desire to travel, or a need to obtain travel documents for identification purposes or other purposes which might have become apparent if the matter had been queried.
The acquisition of a passport by the applicant in 2012 was not a matter which the delegate made any adverse findings about. While once again, the Authority is certainly not bound by any of the delegate’s findings, and indeed it could never be as it is conducting a review, but it was not a matter that the applicant could have been on notice about. A failure by the Authority to exercise its discretion pursuant to s.473DC and invite comments from the applicant about his intentions in obtaining a passport in September 2012, might in the circumstances have been unreasonable. The Authority knew that it did not have, but that the applicant was likely to have, information concerning the issue of a passport in September 2012.[30]
[30] Supra 25 at [59]
Grounds 1 and 3
The legal threshold for finding that a decision-maker’s reasons are irrational or illogical is very high. The High Court has observed that:[31]
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
[31] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135]
Unreasonableness will be established where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to such decision.[32]
[32] Minister for Immigration and Citizenship v Li [2013] HCA 18
The finding about the applicant fabricating the taxi incident is only as good as the combination of the strands supporting it.[33] It is as if the Authority was on a “quest to disbelieve”.[34]
[33] BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 (“BJO18”) per Murphy J at [92]
[34] See supra 13 at [22]-[28] but particularly at [24]
An assessment of credibility is not necessarily undertaken in a linear fashion,[35] and decisions as to credibility are often based upon matters of impression.[36] Decision-making is a complex mental process. Disbelief of an applicant on one point might carry over to affect the decision maker’s disbelief of that person on other points.[37]
[35] Supra 32 per Murphy J at [101]
[36] Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; at [40] referred to in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 (“VAAD”) at [79]
[37] Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 at [81] referred to in VAAD at [79]
The process of reasoning which led to the findings about the applicant’s credibility, premised on the basis that the narrative to the delegate was rehearsed and therefore fabricated,[38] were illogical or irrational in the requisite sense.
[38] SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093 at [34]
Furthermore, the reasoning itself about the various matters which formed the basis of the Authority’s decision was illogical and infected by jurisdictional error. [39]
[39] Referred to in paragraph 14 of these reasons
In this instance, had the Authority not reasoned in the erroneous manner referred to earlier in respect of the rehearsed nature of the applicant’s story and therefore its fabrication by the applicant, it is possible that it would have reached a different view in relation to some of the other matters and its overall conclusion that the applicant had fabricated the entire taxi incident.[40]
[40] See supra 35 particularly VAAD at [79], referred to in BJO18 per Murphy J at [101]
The question is whether the Authority’s erroneous reasoning deprived the applicant of a realistic opportunity of a different outcome. The Court is satisfied that it did and thus the Authority’s errors were jurisdictional.
Ground 2
Compliance with the implied condition of reasonableness can in some circumstances require the Authority to consider exercising and/or to exercise its power pursuant to s.473DC and consider new information by inviting the applicant to an interview.[41]
[41] DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [35]-[46]
The fact that the Authority expressly limited its consideration of its powers under s.473DC to the issue of the delayed disclosure of the first and third threat letters leads to the conclusion that it did not consider whether to exercise its powers under s.473DC in relation to the taxi incident. The issues of concern were never put to the applicant, particularly in circumstances where those issues of concern were different or contrary to the findings of the delegate.
Where reasons for a procedural decision are given, those reasons must be treated as the real reasons for the Authority’s decision in respect of the discretion under s.473DC.[42]
[42] See generally in respect of reasons for s473DD: East Melbourne Group Inc v Minister for Planning [2008] VSCA 217 at [228] per Ashley and Redlich JJA; Wall v Repatriation Commission [2019] FCA 1838 at [60]
In circumstances where the taxi incident was central to the applicant’s claim, the fact that both the delegate and the Authority’s earlier decision accepted that the taxi incident had occurred, that the delegate accepted the applicant recalling the events from experience and finding that that they genuinely occurred and that the delegate did not challenge the applicant’s claim concerning the taxi incident, make the Authority’s conduct legally unreasonable.
As recently confirmed:[43]
24. …The Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.
25. …However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given.
[43] ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 per Kiefel CJ, Bell, Gageler and Keane JJ at [24]-25]
This is what happened in the present case.
The Authority’s failure to exercise its discretion pursuant to s.473DC for reasons outlined earlier and in the whole of the circumstances, was legally unreasonable.
Conclusion
For these reasons the applicant has made out the grounds of jurisdictional error. An order quashing the decision of the Authority and remitting the matter back to it for determination according to law is to be made.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 11 November 2020
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