EMQ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 947
Federal Circuit and Family Court of Australia
(DIVISION 2)
EMQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 947
File number(s): MLG 2154 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 15 November 2022 Catchwords: MIGRATION - Application for judicial review of decision of the Immigration Assessment Authority not to grant a Safe Haven Enterprise (Class XE) (subclass 790) visa – whether the Authority’s findings were illogical and/or unsupported by evidence – whether contended errors by the Authority occurred and were material – application allowed Legislation: Migration Act 1958 (Cth) ss.5(1), 5H, 5J, 36(2)(a), 36(2)(aa), 36(2A), 65, 473BA-473JF Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Home Affairs v DUA16 [2020] HCA 46
Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZMDS v Minister for Immigration and Citizenship (2010) 240 CLR 611
Division: Division 2 General Federal Law Number of paragraphs: 86 Date of hearing: 2 August 2022 Date of last submissions: 16 August 2022 Place: Melbourne Counsel for the Applicant: Mr M Kenneally Solicitor for the Applicant: MP Migration Law Counsel for the First Respondent: Mr J Lessing Solicitor for the First Respondent: Australian Government Solicitor
Table of Corrections 9 December 2022 In paragraph 54, the word “also” being removed and the words “(the audio recording being” added. 9 December 2022 In paragraph 71, the words “the audio recording of” being added and the words “(the Transcript being before the Court)” added. ORDERS
MLG 2154 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EMQ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
15 November 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue bringing the record of the decision of the Second Respondent dated 14 September 2017 in file number IAA16/01615 affirming the decision of a delegate of the First Respondent not to grant the Applicant a protection visa into this Court and quashing it.
2.A writ of mandamus issue directing the Second Respondent to re-determine, according to law, the Applicant’s application to it for review.
3.The First Respondent pay the Applicant’s costs fixed in the agreed amount of $10,000.
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
As CorrectedJUDGE MANSINI
In summary
This is an application for review of a decision made by the Second Respondent (the Immigration Assessment Authority or Authority). In that decision, the Authority affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) refusing the Applicant a Safe Haven Enterprise (Class XE) (subclass 790) visa pursuant to s.65 of the Migration Act 1958 (Cth) (Act).
Background
The Applicant is a male citizen of Sri Lanka of Tamil ethnicity and Hindu faith. He arrived in Australia on 7 November 2012 as an unauthorised maritime arrival.
On 24 December 2012, the Department of Immigration and Citizenship (as it then was) conducted an entry interview with the Applicant who had the assistance of a Tamil interpreter (Entry Interview).
On 23 December 2015, the Department of Immigration and Border Protection (as it then was) invited the Applicant to apply for either a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa.
On 19 February 2016, a solicitor and migration agent lodged an application for a Safe Haven Enterprise (subclass 790) visa on behalf of the Applicant (Visa Application). His reasons for claiming protection were set out in a statutory declaration attached to the application along with other supporting documents.
On 5 October 2016, the Applicant was interviewed by the Delegate (Delegate’s Interview) with representation (a migration agent, who attended by telephone) and the assistance of a Tamil interpreter. The Applicant also provided further documents (including identity documents and references) at that time. A transcript of the Delegate’s Interview was in evidence in these proceedings: Annexure MP-2 to the Affidavit of Maria Psihogios dated 12 November 2018 (Transcript). Pertinent to a number of the grounds of review, the Transcript disclosed the following:
(a)An opening statement by the interviewer that the purpose of the interview was for the Applicant to provide further information in support of his application for a protection visa. The interviewer advised that all the information the Applicant had provided to the department would be considered as part of his protection visa application and referred to an information sheet (which, the interviewer said, contained an explanation of Australia's protection obligations and the Applicant’s responsibility to raise all claims for protection and provide evidence in support of those claims). The Applicant confirmed he had read and understood the information sheet and the information the interviewer had given to him about how his claims would be assessed. The interviewer also emphasised the importance of providing complete, accurate personal protection claims as early as possible including during this interview: Transcript, at p.3-4.
(b)The interviewer then invited the Applicant to correct any information provided previously. The Applicant’s migration agent availed of the opportunity (with the interpreter) to clarify one of the Applicant’s claims about the whereabouts of the Applicant’s family: Transcript, at p.5.
(c)The Applicant made an oath: Transcript, p.6;
(d)The interviewer said they wanted to give the Applicant the opportunity to say everything he would like to before the interview ended, but foreshadowed there was limited time and the interviewer may need to interrupt the Applicant and bring him back to something they needed to get information on: Transcript, at p.6.
(e)During the interview, there was an exchange as follows (Transcript, at p.36):
Ms J: Right. So my question is what do you believe would happen to you if you went back to Sri Lanka?
Mr S: Well, I have a specific problem, an issue because while I was in the rehab camp or in this imprisonment time an intelligence officer, a (indistinct) officer, showed me a video clip where an L TT senior officer was torturing or doing bad things - - -
Ms J: I'11 just interrupt you there, sorry. I —
Interpreter: He said, "I saw - he showed me" - let me complete what he said.
Ms J: Yep.
Interpreter: He said, "I saw some bad things, but unfortunately, you know, I identified the leader, but then I made a mistake of telling that to his brother. When I went back I told his brother."
Mr S: Yes. Yes, I’m aware of this issue from your statement of claims, so I’m following what you’re saying. I’m sorry to cut you short there, but it’s been described in great detail in your statement of claims, so I don’t need it to be repeated here. My question would be what do you fear about returning to Sri Lanka?
(f)After this exchange, the discussion then continued for a few moments and shortly thereafter the interview adjourned for a “natural justice break”. By that time, the interview had extended for more than 1.5 hours. Immediately following that adjournment, the interviewer asked an open-ended question which invited the Applicant to indicate if he wanted to say anything which he declined and then deferred to his representative who responded with submissions and did not seek an opportunity for the Applicant to give further evidence.
After the Delegate’s Interview, on 8 October 2016, the Applicant’s representative provided the Delegate with various country information documents and a translation of a previously provided document.
The Delegate’s decision
On 13 December 2016, the Delegate refused to grant the Applicant the visa.
The Delegate’s decision was referred to the Authority for review on 16 December 2016.
By correspondence dated 3, 4, 11 and 21 January 2017, the Applicant gave the Authority information not previously provided to the Delegate, being:
(a)a statutory declaration of the Applicant made on 3 January 2017, which included a different account of the Applicant’s history to that which was advanced at interview before the Delegate and indeed his Entry Interview – to the extent that the Applicant now gave detailed account of his Liberation Tigers of Tamil Eelam (LTTE) involvement, where he had previously denied any direct involvement with the LTTE;
(b)photographs said to be of the Applicant engaged in activities with the LTTE and more recently for comparative purposes; and
(c)a letter from the Applicant’s doctor dated 23 December 2016 and (two copies of) a psychological assessment dated 4 January 2017, which concluded the Applicant had symptoms of post-traumatic stress disorder, adjustment disorder, anxiety and depression.
The Authority’s decision
On 14 September 2017, the Authority affirmed the Delegate’s decision under review and provided the Applicant with a statement of reasons for that decision (Reasons).
The Authority accepted that “a person with the history the Applicant now claims may initially fear disclosing his LTTE membership” for the reasons stated in the new statutory declaration but found no credible explanation proffered for why the Applicant waited until after the Delegate’s decision to raise this important new claim. The Authority placed weight on the Applicant’s statement given under oath at the Delegate’s Interview that he was not an LTTE member, found this statutory declaration to be in direct contradiction with his earlier sworn evidence and concluded this led the decision-maker to doubt the Applicant’s credibility. Ultimately, the Authority was not satisfied that that this was “credible personal information” that could not have been provided before the Minister made the decision and “exceptional circumstances” did not exist as to justify considering any of it.
At [9]-[10], the Authority accepted that the information regarding the Applicant’s psychological conditions (the doctor’s letter and psychological assessment) was new information that could not have been provided before the Delegate’s decision given those documents respectively post-dated the Delegate’s decision. It was satisfied this was “credible personal information” not previously known which, had it been known, may have affected the consideration of the Applicant’s claims. However the Authority was not satisfied that “exceptional circumstances” existed to justify considering either the claim about the Applicant’s mental health or the letter and assessment.
The Authority obtained country information in the most recent Department of Foreign Affairs and Trade (DFAT) Report of 24 January 2017 (DFAT Report). It accepted that there were “exceptional circumstances” as to justify considering this new information on review, being published after the Delegate’s decision and prepared specifically for the purpose of protection status determination, pursuant to s.473DC(1) of the Act: Reasons, at [11].
Refugee assessment
The Authority made findings on the Applicant’s claims under headings of “Employment and detention”, “Detention”, “Leaking of information”, “Phone footage incident”, “Breach of privacy”, “Tamil ethnicity/imputed political opinion”, “Illegal departure/returning asylum seeker”: at [16]–[50]. The Authority accepted:
(a)The Applicant’s claims that he had been employed with the Irrigation Department and, as this would have involved travel between government and LTTE controlled areas, that the Applicant would have had some contact with staff of the LTTE: Reasons, at [16].
(b)The Applicant worked for a non-governmental organisation (NGO), the Sewalanka Foundation (Sewalanka), and was involved in providing humanitarian assistance: Reasons, at [17].
(c)In March 2009, the Applicant and his father were interrogated by the Criminal Investigation Department (CID) for being suspected LTTE cadres. They were transferred to Arunasalam camp and then Joseph army camp, where the Applicant was detained for 10-12 days, interrogated and tortured by CID officers and forced to sign a document in a dialect or language the Applicant does not understand: Reasons, at [20].
(d)On his release in July 2011, the Applicant was told not to leave Sri Lanka for a year, not to get involved in politics and not to disclose anything that may have happened during the war or in detention and specifically not to NGOs. He was monitored and reported as required until that obligation ceased in July 2012 and with the exception of the questioning about video footage had no further interactions with the authorities; Reasons, at [22].
(e)The Applicant was questioned while detained about the leaking of sensitive human rights footage overseas and that his role with Sewalanka might lead to him being identified as a humanitarian worker. But the Authority did not accept this to mean that he is at risk of harm if he is returned because there had been a change of government in Sri Lanka and country information indicated positive change: Reasons, at [31]-[32].
(f)The Applicant was shown some footage of war crimes against LTTE cadres on a mobile phone by a drunk CID officer while at a rehabilitation centre and recognised a senior LTTE cadre in the footage which was brief, but acknowledged it was generally consistent with his written claims. It was accepted that, based on what he had seen, the Applicant told the brother of the person in the footage that from what he had seen he believed the person was no longer alive; and one month later was told to report to the Sri Lankan Army camp and was interrogated. Without expressly accepting or rejecting it, the Authority noted that the Applicant’s evidence was that he was interrogated about the person who showed him the footage in the camp rather than about his own knowledge of LTTE persons or their family connections: Reasons, at [33].
The Authority concluded that, assessing those of the Applicant’s claims which it had accepted overall, it was not satisfied that if returned to Sri Lanka there is a real chance he will suffer serious harm for any of the reasons claimed: Reasons, at [51]. Accordingly, the Applicant was found not to meet the requirements of the definition of “refugee” at s.5H(1) and was not a person to whom protection obligations were owed pursuant to s.36(2)(a) of the Act.
Complementary protection assessment
The Authority essentially adopted or relied on its earlier findings that the Applicant had worked for Sewalanka, had been detained and was released subject to reporting conditions which obligations ceased in July 2012. It concluded he was not a person of interest at the time he departed Sri Lanka and there is not a real chance of serious harm to the Applicant on his return on any of the claimed bases of detention, work history, imputed political opinion, suspected LTTE involvement, ethnicity, gender or because he originated from an area formerly controlled by the LTTE or on the basis of a perception that he was a humanitarian worker because of his work for Sewalanka. It was reasoned that real chance and real risk involve the same standard and therefore the Authority was not satisfied of a real risk of the Applicant facing significant harm in relation to any of these matters.
The Authority accepted that as a former rehabilitee the Applicant may be monitored but not that such monitoring treatment amounts to significant harm. Also that the Applicant on return would be subject to a series of administrative processes and conditions if retained on demand may be poor and subject of a fine; but ultimately concluded that whether these factors were considered individually or cumulatively it was not satisfied the Applicant was at risk of significant harm within the meaning of s s.36(2A) and s.5(1) of the Act on his return to Sri Lanka or in the reasonably foreseeable future. Therefore there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the Applicant will suffer significant harm and the Applicant did not meet the requirements of s.36(2)(aa).
The application before the Court
On 6 October 2017, the Applicant lodged his application for judicial review of the Authority’s decision. The application was accompanied by an affidavit deposed by the Applicant.
On 30 October 2017, a response was filed by the First Respondent contending that the decision of the Authority was not affected by jurisdictional error.
During the course of these proceedings, various procedural orders were made and materials filed. The final hearing of the matter was variously adjourned.
On 5 May 2022, the matter was re-listed for final hearing before the Court as presently constituted on 2 August 2022.
At the final hearing, the Applicant was represented by Counsel and sought to rely on the following materials:
(a)Second further amended application, handed up on 2 August 2022 without objection and subsequently filed on 16 August 2022;
(b)Affidavit of Ms Maria Psihogios of 12 November 2018, annexing the Transcript of the Delegate’s Interview; and
(c)Written submissions of 10 June 2022.
The First Respondent was represented by Counsel and sought to rely on the following materials:
(a)Written submissions of 19 July 2022; and
(b)Transcript of the Delegate’s Interview.
In the second further amended application, there were five grounds of review with particulars (detailed below) and the Applicant identified final orders sought as follows:
1.An order that the decision of the Immigration Assessment Authority be quashed.
2.A writ of mandamus directed to the Immigration Assessment Authority, requiring them to determine the applicant’s application according to law.
3.The First Respondent pay the Applicant’s costs.
4.Such further order or other Relief as the Court deems appropriate.
Following the hearing, orders were made without objection to amend the First Respondent’s name to Minister for Immigration, Citizenship and Multicultural Affairs (as it now is).
Also after the hearing, the Applicant and First Respondent submitted an agreed position as to costs. That is, if the Applicant were successful, he sought costs in the amount of $10,000 and if the First Respondent were successful, he sought costs fixed in the amount of $13,350.
Statutory framework
The grant of a protection visa is confined by the criteria at s.36 of the Act. Relevant to the present application, at ss.36(2)(a) and (aa), the Act provides that “a” criterion for a protection visa is that the applicant for the visa is:
·a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a “refugee”: s.36(2)(a), see also ss.5H and 5J for the meaning of “refugee” and meaning of “well-founded fear of persecution”; or
·a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer “significant harm”: s.36(2)(aa). See also s.36(2A) for the meaning of “significant harm”.
An administrative decision maker is required to refuse to issue a visa absent the requisite satisfaction that the criteria applicable to the visa application are satisfied: s.65.
Division 3 of Part 7AA of the Act governs the conduct of a review by the Authority of a “fast track reviewable decision” which includes an administrative decision to refuse to grant a protection visa to a “fast track applicant”.
Part 7AA of the Act is arranged in eight divisions comprising ss.473BA-473JF.
Division 1 of Part 7AA commences with a self-described “simplified outline” at s.473BA including that Part 7AA provides a limited form of review in relation to the decisions known as fast track reviewable decisions and that decisions of this kind must be referred by the Minister to the Authority as soon as reasonably practicable after a decision has been made. A fast track applicant cannot apply for review directly to the Authority and decisions of this kind are otherwise generally not reviewable under the Act. Further, in conducting its review, that the Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3. The Authority does not hold hearings and is required to conduct its review on the papers save that, in exceptional circumstances, it may consider new material and may invite a referred applicant to provide, or comment on, new information.
In Division 2 of Part 7AA, s.473CB provides that the Secretary must give to the Authority certain review material and must do so at the same time as, or as soon as reasonably practicable after, referring the decision to the Authority.
Division 3 of Part 7AA, which concerns the subject, “Conduct of review”, is arranged in three subdivisions comprising ss.473DA-473DF.
Section 473DA provides that Division 3 (among two other provisions which are presently immaterial) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB provides that, subject to Part 7AA, the Authority must review a fast track reviewable decision that has been referred to it by considering the review material provided to it and must do so “without accepting or requesting new information” and “without interviewing the referred applicant.”
Subdivision C of Part 7AA, most relevantly at ss.473DC – 473DD, concerns how the Authority may “get” and “consider” new information that was not before the Minister when the decision was made under s.65.
By s.473EA of the Act, a decision of the Authority on Part 7AA review must be accompanied by a written statement which sets out both “the decision” on review and “the reasons for the decision”.
Ground 1
The first ground of review was expressed, with particulars, as follows:
Ground 1
The Immigration Assessment Authority (Authority)'s decision is legally unreasonable and/or irrational and/or illogical as the finding that the applicant had not been directed to attend Joseph army camp on 30 October 2012 and that CID officers had not visited his family home after his departure was irrational and/or illogical.
Particulars
a.The applicant claimed in his statutory declaration dated 13 February 2016 that he had been ordered by an army commander to report to Joseph army camp on 30 October 2012 in relation to his disclosure of information regarding human rights abuses by the Sri Lankan army.
b.The applicant claimed that:
i.A condition of his release from rehabilitation in July 2011 was that he not disclose human rights abuses during the war; and
ii.in his SHEV interview that he feared harm on return to Sri Lanka because he beached the conditions of his release from a rehabilitation camp.
c.The applicant claimed that he fled Sri Lanka instead of reporting to Joseph army camp.
d.The applicant claimed that CID officers visited his family home after his departure asking about his whereabouts (CID visits).
e.The Authority found at [33] of its reasons that the applicant was not ordered to report to Joseph army camp because the applicant did not expressly press the claim in his Safe Haven Enterprise Visa (SHEV) interview on 6 October 2016.
f.The Authority found at [34] of its reasons that the CID visits did not occur because the applicant did not repeat them in his SHEV interview.
g.The Authority's findings at particular (e) and (f) lacked a logical and probative basis and/or were unreasonable/irrational because in the SHEV interview the applicant was told by the interviewing officer that he did not need to repeat his written claims from his statutory declaration and/or the applicant had referred to his fear of harm for breaching the conditions of his release in the SHEV interview.
h.The error was material, as but for the error the Authority could have found the applicant satisfied the criteria for protection in s 36(2)(a) and/or (aa) of the Migration Act 1958 (Cth) (the Act) for reason of:
i.failing to report to Joseph army camp on 30 October 2012;
ii.his disclosure of the human rights abuses; and/or
iii.the CID visits to his home after the departure.
(sic.)
This ground of review expressly related to the Authority’s findings where the Authority dealt with a series of claims under the heading “phone footage incident” and found:
·At [33], that the Applicant had not been directed to attend the Joseph army camp again on 30 October 2012; and
·At [34], that CID officers had not subsequently visited the Applicant’s family home after his departure.
The Applicant essentially contended that it was illogical, irrational and/or unreasonable for the Authority to reject the Applicant’s claim that he had been directed to attend the Joseph army camp again (further report to Joseph army camp claim) and/or the claim that CID officers had visited his family home after his departure (CID visits claim) on account of his failure to “press” or “repeat” those claims in the Delegate’s Interview, because of the direction given by the Delegate. The Applicant emphasised as relevant that he had begun to recount the phone footage incident when he was told by the interviewer not to repeat his written claims in the interview. Additionally, that the Applicant’s next response after being interrupted was said to be connected with the phone footage incident.
The First Respondent contended it was reasonably open for the Authority to: firstly, find that these claims were not pressed because they were not raised in the Delegate’s Interview; and secondly, to therefore draw an adverse inference that these claimed events had not occurred. It pointed to the broader context in the materials before the Authority, including the opportunities afforded to the Applicant to raise his claims at interview, the various inconsistencies that were before the decision-maker and the Authority having elsewhere identified concerns about the Applicant’s credibility.
Applicable principles
The Authority was required to conduct a “de novo” review of the Applicant’s application for a protection visa, which required it to consider the Applicant’s claims to face a real chance of serious harm or serious risk of significant harm on return to Sri Lanka, by reference to the “review material”: s.473DB(1).
It is not contentious that such consideration must be within the bounds of legal reasonableness and must be proper, genuine and realistic: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [25]-[27].
An illogical or irrational finding may constitute a jurisdictional error. However, mere disagreement with the decision-maker’s findings is not enough. The decision must be affected by extreme illogicality or irrationality: SZMDS v Minister for Immigration and Citizenship (2010) 240 CLR 611 (SZMDS) at 647-648.
The Applicant referred to the recent decision of the Full Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [31]-[35] in which it was held that:
The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 517–518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].
[…]
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
The irrational finding must be either in relation to or material to the decision maker’s conclusion regarding the statutory criteria: SZMDS at 648; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at 134.
Consideration
The Reasons were replete with references to the Authority’s analysis of the degree of consistency between the Applicant’s written statement submitted with the Visa Application and the evidence given in the Delegate’s Interview. In parts, the Authority gave little weight to identified inconsistencies – for example, at [29]. However as regards the findings subject of grounds 1 and 2, at [33] and [34], those inconsistencies were plainly fundamental to the Authority’s reasoning, addressed further below.
The Authority did not accept the Applicant’s account that he was required to report again to the Joseph army camp as a result of his disclosure of the phone footage. The Reasons express that this finding arose from two considerations: with regard to “the nature of the questioning” and because the Applicant had not “pressed the claim”.
The language used in relation to the first consideration is somewhat unclear, as demonstrated by the parties’ different understanding. I prefer the First Respondent’s submission that the Authority intended to refer to the Applicant’s own evidence about the nature of the questions he was asked whilst under interrogation about the footage (being about the person who had shown him the footage and not about himself or his own LTTE links) as one of the bases on which it decided to reject this claim.
The second consideration was that the Applicant had not pressed the claim. Although the Authority did not put it this way, the parties accept and I agree that when regard is had to the Reasons in their entirety (including the prefacing words to paragraph [33]), this was intended to mean that the Applicant did not press in the Delegate’s Interview the claim which was made in his written statement lodged with the Visa Application.
By its rejection of this claim, the Authority’s reasons may fairly be characterised as having dismissed this component of the Applicant’s claims in the written statement as untruthful or unreliable in part and in doing so placed substantial reliance on the identified inconsistency with his evidence at the Delegate’s Interview. It may be noted at this point that the Authority’s approach was to accept the Applicant’s evidence related to this “phone footage incident” claim where it was consistently raised in his written materials and repeated (or pressed) at the Delegate’s Interview.
The written statement lodged with the Visa Application, part of the review material before the Authority, contained a detailed explanation of the Applicant’s evidence about this claim: Statement of 13 February 2016 at p.1- 8.
The Transcript of the Delegate’s Interview (the audio recording being part of the review material before the Authority) recorded that the Applicant was assured at the outset that all of the material before the department would be considered and the Delegate wanted to give him the opportunity to say everything he wanted to say before the interview ended. But the Transcript also recorded that, at the very point where the Applicant was asked to explain what he feared would happen to him if he returned to Sri Lanka, and commenced to answer by describing the “phone footage incident” claim from the beginning, the interviewer interrupted, apologised for interrupting and cutting him short and assured the Applicant that this had been described in great detail in his statement of claims and so it did not need to be repeated here. The Applicant continued by reference to having broken conditions of his release- although the Transcript does not say whether this was his original release from rehabilitation camp or release after the phone disclosure interrogation. The Applicant had been advised, at the commencement of the Delegate’s interview, that he would be interrupted if the interviewer needed to bring him back to something they needed to get information on.
As the First Respondent contended, there is greater context to this extract and it must be acknowledged that the Delegate’s Interview commenced with apparently standard preliminaries including confirmation that the Applicant had read and understood the information sheet. The Applicant was represented by a migration agent who was not physically present but attended the interview by telephone. And, immediately after the said interruption, there was a natural justice break and a final opportunity to say anything the Applicant wanted to say before concluding with submissions by the Applicant’s representative.
It may be accepted that the failure to press the further Joseph army camp report claim was not the only reason why the Authority rejected this component of the Applicant’s claims about fear of harm. It was also rejected by reason of the nature of the questioning (or interrogation) he faced in relation to the phone footage disclosure, which evidence appears to have been taken at its highest on the Applicant’s own account.
However the Authority’s reliance on the Applicant’s failure to press this claim in the Delegate’s Interview was an express reason provided for its consideration that the Applicant’s evidence in his written statement provided with the original Visa Application was not accepted.
Similarly, the Authority did not accept the Applicant’s claims that his family were visited by members of the CID searching for the Applicant or that CID officers went to his family home and confiscated his voting card- because neither of those claims was made at the Delegate’s Interview. This was the single reason expressed for such rejection which were assessed by the Authority as “fabrications”.
The threshold for establishing illogicality or irrationality on the part of an administrative decision-maker represents a high hurdle for an applicant. On the materials before the Authority in its review, I have formed the view that this is a rare case of extreme illogicality where the outcome was not open to the decision-maker.
In relation to those of the Applicant’s claims which were before the Delegate and subject of this review, at [33] and [34] the Authority on the one hand accepted that there was a phone footage incident and on the other hand reasoned that it could not be satisfied that the Applicant was required to report again to the Joseph army camp by the end of October 2012. This reasoning in rejecting part of the Applicant’s claims about the phone footage incident was, expressly, premised upon an assumption that the Applicant would have been expected to understand that he should reiterate all of his written claims to the Delegate at the Delegate’s Interview. Neither the Applicant nor his representative were advised that adverse findings would be made if he did not do so. Indeed, the Applicant (through his interpreter) started to explain the phone footage incident at the Delegate’s Interview but was – in the interviewer’s own words – interrupted, cut short and asked not to repeat what was in his written materials. Having been advised that the interviewer would take the Applicant to matters where it sought more information, it does not follow, as a matter of logic, that the Applicant’s claims be rejected with any emphasis on the failure to press or repeat these claims in the Delegate’s Interview.
It is well established that not every lapse in logic will result in jurisdictional error. However, in this case, the Authority’s reliance upon the impugned reasoning was central to its rejection of the Applicant’s claims regarding his reason for fleeing Sri Lanka and his fear of return. That the Authority understood the connectivity to the Applicant’s broader claim and that this explained his departure is apparent by the Authority’s use of the heading “Phone footage incident” in its findings, under which paragraphs [33] and [34] of the Reasons appear. This finding was relied upon by the Authority in finding that the Applicant was not of adverse interest when he left Sri Lanka (at [40]). This in turn informed the Authority’s findings that the Applicant was not entitled to protection (the cumulative findings) by reference to having rejected this claim about reporting again at the Joseph army camp (at [40], [44], [51] and [58]-[59]).
That is the case notwithstanding there were, as the First Respondent contended, a series of other findings which lead the Authority to conclude that the Applicant did not meet the thresholds at ss.36(2)(a) and (aa).
I accept that, having separately concluded the Applicant was a rehabilitee whose original reporting condition had lapsed, had the Applicant been found to have been imposed with and “skipped” a further reporting obligation imposed on account of the phone footage disclosure, the Authority may have found the Applicant’s profile was such that he was at risk of serious or significant harm.
In my view, when regard is had to the extent of the adverse findings about the Applicant’s credit because he did not press the further Joseph army camp at the Delegate’s Interview, the Authority’s decision was not based on findings or inferences of fact supported by logical grounds as contemplated by the established authorities and the error was material to the outcome.
For completeness, whilst the approach to the CID visits claim was in my view affected by illogicality, I am not persuaded it was material in the sense that but for it the Authority could have found the Applicant satisfied the criteria for protection in ss.36(2)(a) and/or (aa).
Ground 2
The second ground of review was expressed, with particulars, as follows:
Ground 2
The Authority failed to consider or engage in proper, genuine and realistic material of critical and significant part of the review material as required by s 473DB of the Act.
Particulars
a.In the context of the authority’s findings at particulars (e) and (f) in ground 1, the Authority fell into jurisdictional error by not considering or giving proper, genuine, or realistic consideration to the following evidence from the SHEV interview:
i.that the delegate told the applicant that he did not need to repeat his written claims from his statutory declaration.
ii.that the applicant said he feared harm for having breached the conditions of his release from the rehabilitation camp.
b.The error was material, the applicant repeats and relies on particular (h) in ground 1.
This ground 2 was put further, or in the alternative, to ground 1 – essentially as a failure to consider or engage in a proper, genuine and realistic consideration of critical and significant part of the review material before the Authority as required by s.473DB of the Act.
The First Respondent did not accept there was such failure. Further it submitted that, even if the arguments the Applicant now makes can be said to have clearly emerged from the material, absent a duty to provide reasons, it is difficult to infer from the Authority’s failure to refer to a particular piece of evidence or a particular claim that the evidence or claim was not considered.
Applicable principles
While the Authority is not required to refer to every piece of evidence, where cogent evidence assumes significance in the context of the review, the failure to refer to it can constitute jurisdictional error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 [111] – [112].
That said, the fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered: Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166, [49]. And as the First Respondent contended, it should not be inferred that the Authority failed to consider the review material, in particular any portion of the Delegate’s Interview merely because the Authority did not refer to it in its reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46].
Consideration
The review material that was before the Authority and that it was required to consider pursuant to s.473DB(1) is detailed above and, pertinent to this ground of review, included the record of Entry Interview, the written statement that accompanied the Visa Application, the audio recording of the Delegate’s Interview (the Transcript being before the Court), and the Delegate’s decision record.
The Applicant’s position evolved somewhat in the materials and the materials are fairly described as inconsistent in parts. For example, although there was mention of having broken a condition of release there was no specific mention of the phone footage disclosure and CID visit claims in the Applicant’s Entry Interview. These details were first provided in the written statement delivered to the Delegate prior to interview. The Applicant did not address the detail of these claims at the Delegate’s Interview and his representative did not address them in closing submissions at the conclusion of the interview.
It was open for the Authority, in its de novo review, to make findings about those inconsistencies. The Authority was not required to express each portion or component of the material it had considered in support of its written Reasons. Although the Authority noted (at [25]) that the Applicant had limited opportunity at the Delegate’s Interview to expand on his claims, this was in the context of addressing the Applicant’s claims about detention in a series of rehabilitation camps. That fine reference, in the context of addressing another claim altogether, does not properly found a conclusion in favour of the First Respondent’s argument here.
To the contrary, and with the benefit of Counsel to highlight the relevant parts of the materials, it is apparent that the Authority failed to have proper regard to that evidence at page 36 of the Transcript of the Delegate’s Interview. In particular, in attributing weight to the Applicant’s failure to press the further Joseph army camp claim, it did not have regard to the evidence before it that the Applicant had effectively been stopped or directed from completing his answer to a question about what he believed would happen to him if he returned to Sri Lanka. Immediately before he was interrupted, the Applicant had attempted to tell his narrative later characterised by the Authority as the phone footage incident. He was reminded at interview, more than once, that all of the materials before the department would be taken into account and that he did not need to repeat his written claims. It was therefore not open on the materials before the Authority to draw an adverse inference in this regard.
As earlier identified at ground 1, the rejection of the claim to further report to the Joseph army camp was integral to a series of subsequent findings and I similarly conclude that the error identified at this ground 2 was material as it relates to the failure to press the further Joseph army camp claim (and not the failure to repeat the CID visits claim).
Grounds 3, 4 and 5
These grounds were expressed as follows:
Ground 3
The Authority’s failure to consider exercising its discretion or failure to exercise its discretion to get new information from the applicant pursuant to s 473DC was legally unreasonable.
Ground 4
The Authority failed to complete its statutory task pursuant to s 473DD, failed to ask itself the correct question pursuant to s 473DD(b); and/or failed to consider relevant evidence or arguments that clearly emerged that s 473DD(b) was satisfied in relation to the applicant’s new claim to have been an LTTE combatant by not considering:
a.the medical evidence; and/or
b.that the applicant’s entry interview had been disclosed to a third party.
Ground 5
The Authority adopted an unduly narrow approach to the meaning of “exceptional circumstances” in s 473DD(a) in considering new information relating to the applicant’s mental health.
In light of the conclusion that grounds 1 and 2 are upheld, it is not strictly necessary to resolve the remainder. For completeness, I consider it useful to say something about them.
These grounds commonly relate to the Authority’s failure to exercise its discretion to get or consider “new information”. Specifically in relation to: not getting new information pursuant to s.473DC about the Applicant’s claim regarding the disclosure of human rights abuses including the requirement to report again to the Joseph army camp and the CID visits claims (ground 3); not considering the new information provided in January 2017 (medical evidence) and material about the claim that the Applicant’s Entry Interview had been disclosed in finding the Applicant’s new claim to have been an LTTE member was not “credible personal information” pursuant to s.473DD (ground 4); and that the Authority’s assessment of whether there were “exceptional circumstances” to justify considering the new information provided in January 2017 (medical evidence) was erroneously focussed on whether that evidence could have been obtained and provided to the Delegate before its decision.
The statutory framework and principles relevant to the conduct of the Authority in conducting its fast track review are set out at [28] to [38] above and relevant to the present context include: the power of the Authority to get any documents or information (“new information”) that were not before the First Respondent when it made the decision under s.65 and the Authority considers may be relevant; and the statutory qualification on the Authority’s power under s.473DD to consider any new information.
Section 473DC (Getting new information) is expressed in permissive terms - the Authority may get new information. In contrast, s.473DD (Considering new information in exceptional circumstances) is expressed in proscriptive terms - the Authority must not consider new information, unless certain cumulative and alternative requirements of that section are satisfied.
The applicable principles need not be repeated here beyond that, in the exercise of its procedural power, the Authority is not obliged to give comprehensive reasons for its exercise (or non-exercise) of procedural power including under s.473DC; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, [40]. That power is still subject to the obligation to act within the bounds of legal reasonableness: Minister for Home Affairs v DUA16 [2020] HCA 46 at [27].
On the materials before the Court, and having regard to the statutory context as I am obliged to do, I have not identified any merit to grounds 3, 4 and 5 as argued.
Resolution
In the present case, it may be accepted that the Authority may legitimately have been concerned about the differing and evolving claims of the Applicant. The Authority was entitled to resolve those inconsistencies on the evidence in the materials before it and was not obliged to consider the Applicant’s claims within the “new information” that was not before the Delegate or by getting “new information”.
However, and for the above reasons, I accept that jurisdictional error has been established under grounds 1 and 2.
I have found the Authority’s decision is affected by jurisdictional error. The application before this Court therefore succeeds.
I will order accordingly and that the First Respondent pay the Applicant’s costs in the agreed amount of $10,000.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 15 November 2022
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