EXR17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 858
•10 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EXR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 858
File number: MLG 2401 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 10 September 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority to affirm an earlier decision not to grant the applicant a protection visa – whether the Authority made irrational findings or unreasonably relied on omissions from the applicant’s entry interview in making adverse findings – whether the Authority acted unreasonably by failing to exercise the discretion in s 473DC of the Migration Act 1958 (Cth) to invite the applicant to an interview – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 473CA, 473DB, 473DC, 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
BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079
ERO17 v Minister for Immigration and Border Protection (2019) 165 ALD 78; [2019] FCA 596
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456; [2020] FCAFC 29
Minister for Home Affairs v AYJ17 (2019) 165 ALD 64; [2019] FCA 591
MZZJO v Minister for Immigration for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 14 November 2023 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Dr A McBeth Solicitor for the Applicant: Wimal & Associates Counsel for the First Respondent: Ms N Campbell Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 2401 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EXR17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
10 SEPTEMBER 2024
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
The applicant is a Sri Lankan Tamil who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision. The applicant seeks judicial review of the Authority decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant asserts that the Authority made a jurisdictional error because it:
(a)made findings that were irrational, acted unreasonably in the conduct of the review or constructively failed to conduct the review required by statute, because it relied on omissions from the information provided by the applicant at an Irregular Maritime Arrival Entry Interview (entry interview); and
(b)unreasonably failed to exercise the discretion in s 473DC of the Migration Act to invite the applicant to an interview.
For the reasons explained below, the applicant has not established that the Authority decision is affected by jurisdictional error. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant entered Australia by sea in November 2012 and he is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
The applicant attended an entry interview conducted by an officer of the Minister’s Department on 6 January 2013.
On 17 October 2016 the applicant applied for a protection visa and he attended an interview with an officer of the Minister’s Department to discuss his protection claims on 30 March 2017 (protection visa interview).
On 24 July 2017 a delegate of the Minister refused to grant the applicant a protection visa. The matter was then referred to the Authority in accordance with s 473CA of the Migration Act.
The applicant, via his representative, provided a written submission and new information to the Authority on 18 August 2017.
On 23 October 2017 the Authority affirmed the delegate’s decision. Those parts of the Authority decision that are most relevant to the grounds of application raised in this judicial review proceeding are discussed in the consideration of the applicant’s grounds below.
JUDICIAL REVIEW APPLICATION
The applicant filed a judicial review application on 9 November 2017 and the application was therefore made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant relies on the following two grounds set out in an amended application filed on 29 September 2022 (reproduced without alteration):
1.The IAA made findings that were irrational, or acted unreasonably in the conduct of the review, or constructively failed to conduct the review required by statute, in its reliance on omissions from the arrival interview.
Particulars
(a)The IAA repeatedly relied on the applicant’s failure to mention details of some of his claims at the arrival interview, on the premise that he had ample opportunity to provide all such details, to conclude that claims that were subsequently mentioned were fabricated.
(b)The interviewer at the arrival interview asked the applicant: “Tell me, in one sentence, why did you leave Sri Lanka?”
(c)The applicant answered in a single sentence, as the interviewer had directed him.
(d)It was irrational to find that the applicant had ample opportunity to mention all his claims and the details thereof having regard to the question the applicant was asked.
(e)Further and alternatively, the IAA constructively failed to conduct the review by engaging in a quest to disbelieve the applicant.
2.The IAA unreasonably failed to exercise the power in s 473DC of the Migration Act 1958 to invite the applicant to an interview.
Particulars
(a)The applicant mentioned being sexually tortured at least three times in his interview with the delegate and offered to provide more detail. On each occasion, the delegate was evidently reluctant to engage on that topic and moved to a different question.
(b)The IAA did not have the benefit of observing the applicant’s demeanour that the delegate had.
(c)It was unreasonable of the IAA to make adverse findings regarding the claim of sexual torture without first inviting the applicant to an interview in which his demeanour could be observed.
(d)Further and alternatively, it was unreasonable of the IAA to make adverse findings based on the lack of detail in the applicant’s answers in the interview with the delegate, in circumstances where the delegate did not pursue the line of questioning and where the IAA reviewer had the power under s 473DC to pursue the line of questioning herself, without first inviting the applicant to an interview.
(e)Further and alternatively, it was unreasonable of the IAA to make adverse findings based on the manner in which the applicant gave evidence, including being vague and evasive, without first inviting the applicant to an interview so the manner of giving evidence could be observed.
The evidence before the Court comprises:
(a)the court book filed on behalf of the Minister on 16 August 2018;
(b)an affidavit of Jeremy Hutton filed on behalf of the Minister on 1 July 2022, annexing the written record of the applicant’s entry interview; and
(c)an affidavit of Mylvaganam Wimaleswaran filed on 18 October 2023 on behalf of the applicant, annexing transcripts of the applicant’s entry interview and protection visa interview.
GROUND 1
By ground 1, the applicant asserts that the Authority acted irrationally or unreasonably in rejecting his claims because he did not raise those claims during the entry interview.
Relevant authorities
In MZZJO v Minister for Immigration for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 (MZZJO), the Full Court cautioned against a decision-maker making adverse findings solely on the basis of omissions at entry interviews. The Court said at [55]-[57]:
55.We agree with the Federal Circuit Court that the Tribunal’s conclusions were “well open to it” in the sense of being findings about the credibility of the account given by the appellant. They were based only in part on the Tribunal’s questioning of the appellant about agnosticism. They were also based on inconsistencies the Tribunal identified between the appellant’s various accounts of what had happened to him, and about his failure to mention certain matters at his entry interview.
56.On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
57.Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.
In ERO17 v Minister for Immigration and Border Protection (2019) 165 ALD 78; [2019] FCA 596 (ERO17), Moshinsky J made the following observations at [21]-[25] about the judgment in MZZJO:
21.The following matters should be noted about MZZJO and the passage relied on by the appellant. First, MZZJO was principally a case about how decision-makers should deal with the examination of an applicant’s religious beliefs, rather than the narrower issue of how decision-makers should deal with omissions in an entry interview. The Court concluded, among other things, that the tribunal’s assessment that the appellant had “contrived” his claims relating to religion was “well open to it” (at [54]-[55]). That conclusion was based on the fact that the tribunal’s assessment was based, not only on its questioning of the appellant about his agnosticism, but also on the inconsistencies it identified between the appellant’s accounts of what happened to him, and his failure to mention certain matters at his entry interview (at [55]).
22.Secondly, the Full Court’s exhortation to decision-makers was to exercise caution in relation to omission of matters at an entry interview. This is not a prohibition on reliance on such an omission; it is guidance about the desirability of a cautious approach to fact-finding when relying on an omission at an entry interview.
23.Thirdly, the Full Court stated that had the tribunal in that case relied only on a failure to mention details at the entry interview, then the Court “may have been inclined” to see this as involving a misunderstanding of its task on review (at [57]). The Full Court identified this conclusion as a possibility, rather than definitively stating that it would have been reached.
24.Fourthly, the Full Court’s observations related to a specific situation, namely where the tribunal relied “only” on a failure to mention details at the entry interview.
25.Fifthly, the comments of the Full Court were obiter dicta: see EBC17 v Minister for Immigration and Border Protection [2018] FCA 1836 at [22].
In Minister for Home Affairs v AYJ17 (2019) 165 ALD 64; [2019] FCA 591 (AYJ17), Moshinsky J held, in relation to a finding that claims were fabricated because they were not referred to in the applicant’s entry interview, at [41]-[42]:
41.In the present case, I consider that it was illogical or irrational in the sense described by Crennan and Bell JJ in SZMDS for the IAA to reject the respondent’s claim concerning the death of his brother on the basis that he did not mention it at the arrival interview. First, the purpose of the arrival interview in this case was primarily to obtain details about biodata and travel to Australia; its purpose was not to obtain a detailed description of the respondent’s claims. This is indicated by the introduction on page 1 of the form (which is to be contrasted with the “Important Information” set out on page 1 of the entry interview form); the structure of the form (divided into two parts, one dealing with biodata, the other with travel); the length of the form; and the limited space available for a response to question 21.
42.Secondly, the respondent’s response to question 21 (which asked, “Why did you leave your country of nationality (country of residence)?”) was: “I was an officer with Police in Iraq + I was threatened by religious groups.” In my view, this was a high-level summary of the respondent’s claims and was capable of encompassing the respondent’s claim regarding his brother’s death. As set out in the delegate’s decision, the respondent claimed that he was the real target of the bombing due to his employment as a police officer and, in particular, that he was a Sunni working in that field. In light of this, the respondent’s response to question 21 was capable of encompassing the claim regarding the brother’s death. In addition, I note that the respondent’s response to question 21 in the arrival interview was repeated in the entry interview, where it served as the introductory sentence to a longer explanation of why he left Iraq.
The applicant’s entry interview
The applicant’s entry interview took place approximately eight weeks after his arrival in Australia.
The applicant was asked to provide biographical information about his life and family and about his travel to Australia.
The following exchange took place that is relevant to the consideration of this ground:
INTERVIEWER: … tell me, in one sentence, why did you leave Sri Lanka? INTERPRETER: Because of death threats – particular death threats. INTERVIEWER: From who? INTERPRETER: The ruling party. INTERVIEWER: Why were you getting death threats? INTERPRETER: Because of the election, and we give some money to the ruling party. They promised that they can get us a job. Because of that, they cheated us, and because of that, they started hurting us. INTERVIEWER: Okay. I’ve got some more questions. I simply need a yes or no answer. Have you or members of your family been associated or involved with any political group or organisation? INTERPRETER: Yes. INTERVIEWER: What was that? INTERPRETER: We worked for a – we worked for election for a party. INTERVIEWER: Which party? INTERPRETER: TNA… INTERVIEWER: … Okay. Just you or your family? INTERPRETER: My family. INTERVIEWER: Okay. Were you or any members of your family involved in any activities or protests against the government? INTERPRETER: No. No. INTERVIEWER: Are you a member of any particular social or religious group? INTERPRETER: No. INTERVIEWER: Have you ever served with any police security or intelligence organisation? INTERPRETER: No. INTERVIEWER: Were you ever arrested or detained by the police or security organisations? INTERPRETER: No. INTERVIEWER: Did the police and security or intelligence organisations impact on your day-to-day life where you lived? INTERPRETER: The ruling party, they took us - - - INTERVIEWER: Yes, the ruling party was ….. I want to know whether the police or security - - - INTERPRETER: No. INTERVIEWER: Okay. The next question, were there any armed groups, political groups or religious groups operating in the area where you lived? INTERPRETER: Yes. INTERVIEWER: Which groups? INTERPRETER: Some religious groups are there. INTERVIEWER: … And any others? INTERPRETER: No. INTERVIEWER: No. And did you have any involvement with any of them? INTERPRETER: No. INTERVIEWER: Okay. Have you ever participated in any armed conflict or fighting? INTERPRETER: No. INTERVIEWER: Have you ever received training in preparation for conflict? INTERPRETER: No. No. INTERVIEWER: Have you been involved in any military service? INTERPRETER: No.
The relevant reasoning of the Authority
The Authority made findings which were based, in part, on the failure of the applicant to mention something during his entry interview. Those findings include that:
(a)the Authority did not accept that the applicant was forcibly recruited by and trained with the Liberation Tigers of Tamil Eelam (LTTE);
(b)the Authority did not accept that the applicant had been detained, physically beaten and sexually assaulted by the Sri Lankan authorities;
(c)the Authority did not accept that the applicant had been abducted and tortured by the paramilitary Pillayan or Karuna Group; and
(d)the Authority did not accept that the applicant campaigned for the Tamil National Alliance (TNA) or was threatened, noting that he did not mention at the entry interview that his home was shot at.
The Authority’s findings regarding the applicant’s claim to have been forcibly recruited and trained by the LTTE
The Authority addressed the applicant’s claim to have been forcibly recruited and trained by the LTTE at [13]-[16] of its reasons, where it said:
13.However, I do not accept the applicant was subsequently taken or forcibly recruited and trained by the LTTE as he did not mention that in his arrival interview on 6 January 2013. When asked why he left Sri Lanka the applicant said it was because of political threats from the ruling party. He said because of the election they gave some money to the ruling party as they promised he would be given a job, but they cheated him and started threatening them. He made no mention of LTTE recruitment, abduction, arrest or interrogations or fear emanating from this. Further, he was asked a number of questions about military training and each time he responded that he had not been involved. I consider if he had been forcibly recruited and trained he would have not have denied he had received such training.
14.I have considered the applicant’s explanations for these omissions, but I do not accept them. The arrival interview was 50 minutes long. He was asked a number of times about military training, impact on his life from police, security or intelligence organisations or armed groups. The interviewer also asked the applicant follow up questions in relation to his claims about from whom he feared harm and why threats were made. Having listened to the interview it was not rushed or hurried and I consider the applicant had plenty of opportunity to mention such key events and claims. Even if the interview was short, I consider he could have mentioned his LTTE recruitment, abductions and interrogations and his subsequent claimed interactions with the Sri Lanka authorities as a result of such association as these would have been key events. He was asked if he was ever arrested, detained or if police, security organisation ever had an impact on his life and he answered. ‘No’. He was asked about any armed, political, or religious groups operating in his area and he said there were religious groups, but did not mention the LTTE or any other groups. It is difficult to believe that he had any involvement with LTTE or feared Karuna or Pillayan groups given he only mentioned religious groups but not the LTTE, Karuna or Pillayan groups. When asked about the nature or level of involvement with any groups, he said he had none, other than with religious groups. I consider the applicant had a number of opportunities to mention his claims LTTE, detention, abduction claims, fear of harm from other groups, but he did not.
15.I do not accept that he was confused or was suffering effects of arriving by boat, as the interview was two months after his arrival by boat. Having listened to the interview, I do not accept the applicant’s omissions are explained by interpreting errors. The applicant did not raise any problems with the interpreting or understanding at interview.
16.I do not accept that he was hesitant to provide information at interview due to fears it would be reported to Sri Lankan authorities, as he was informed that the information was confidential and would not be provided to them. Further, it does not make sense that he would be fearful to disclose LTTE recruitment to Australian authorities as he claimed it was forcible and he escaped, which would enhance his claims. Further, he did not make these new claims until September 2016, four years after his arrival in Australia.
The Authority provided ‘further’ reasons for rejecting the applicant’s claim to have been recruited and trained by the LTTE at [17] and [18] of its reasons. Those reasons were that the applicant’s evidence was ‘vague, lacked details and inconsistent’, that there was almost no information about his claimed escape from the LTTE, which the Authority considered would be a major event and something he would have mentioned and described, and that it was not credible that he would escape from the LTTE and then return home if he was in fear of them.
The Authority’s findings regarding the applicant’s claim to have been detained, physically beaten and sexually assaulted
The Authority also had regard to the failure of the applicant to mention during the entry interview having been detained, physically beaten and sexually assaulted by the Sri Lankan authorities or the Pillayan or Karuna Group in finding that his claim was fabricated. The applicant in his written submissions referred to the Authority’s reasons at [22] and [29]. These paragraphs appear under different headings of the Authority’s reasons and it is appropriate to consider the Authority’s reasoning in its proper context. I understand the Authority to be addressing different claims under these headings.
Under a heading ‘Authorities’, the Authority addressed the applicant’s claim to have been taken into custody by security forces, interrogated by the Criminal Investigation Department (CID) in relation to his involvement with the LTTE and tortured after he escaped from the LTTE and returned home in late 2007 or early 2008.
The Authority found that the applicant provided inconsistent accounts in his written statement and protection visa interview about who was taken into custody, by whom and for how long he was held, and that there was a lack of detail about what happened: Authority’s reasons at [20] and [21].
The Authority then said at [22]:
Further, he did not mention he was sexually tortured by authorities in 2007 until at interview in 2017. I do not accept that he was confused or not in a state of mind or is ashamed such that he could not provide that evidence until then. The claimed event occurred in 2007 or early 2008, a significant time ago. Further, the applicant had an opportunity at the 2013 interview and in his written statement in 2016 to provide that evidence. Further, the applicant had representation and provided a very long statement and submission in support of his claims. I consider the applicant has added to his account as he went along.
The Authority considered that the inconsistencies in the applicant’s account were because he was not recounting true events and did not accept that the applicant’s home was raided or that the applicant was questioned, taken into custody, placed on reporting conditions, tortured or harmed by the army, CID, the authorities or anyone else in relation to the LTTE recruitment or perceived association: Authority’s reasons at [24].
Under a heading ‘Pillayan, Karuna’, the Authority considered the applicant’s claims to have been abducted by Pillayan because he was asking for his money back as he did not get a promised government job.
The Authority considered that it was not credible that if the applicant or his parents had paid a bribe, that they would ask for their money back: Authority’s reasons at [25]. The Authority also considered that the applicant’s description of the claimed abduction was vague, lacked details and was inconsistent: Authority’s reasons at [25]-[26]. The Authority considered that the applicant gave hesitant evidence as he had difficulty remembering even the year that this occurred, and found that the inconsistencies in the applicant’s vague account of his abduction and the lack of detail was because the applicant was not recounting true events: Authority’s reasons at [27]-[28].
The Authority then said at [29]:
Further, the fact that the applicant did not mention his abduction, torture by the group until 2016 further reinforces my view that the applicant has fabricated his account. I consider if this had occurred he would have mentioned it at his arrival interview, particularly given it was linked to his claim (at that interview) that his family paid money to get him job. Further, while he mentioned they started threatened them, he still made no mention of being abducted or tortured.
The Authority did not accept that the applicant was threatened, abducted or tortured by Karuna, Pillayan, paramilitary groups or anyone connected to such persons or groups: Authority’s reasons at [30].
The Authority’s findings in relation to the applicant’s claims to have campaigned for the TNA and been threatened
The Authority’s rejection of the applicant’s claim to have campaigned for the TNA and been threatened was addressed at [31] of its reasons, where it said:
I do not accept he campaigned for TNA or was threatened. His account was also inconsistent and vague. For instance, in his statement he claimed his house was shot at and they warned him not to campaign. However, he did not mention that in his protection interview or in his arrival interview. Rather, in his protection interview he claimed they telephoned the home and warned they would shoot and kill them. I consider if his home was shot at he would have mentioned this in his arrival interview and in his protection interview.
The Authority considered that the applicant’s evidence was also vague, lacked details and was unresponsive at the protection visa interview and found that his poor evidence in this regard indicated that he was not recounting true events: Authority’s reasons at [32]-[33]. The Authority also found it difficult to believe that the applicant did not know the full name of the candidate who was supposed to be a family friend and his father’s boss: Authority’s reasons at [34]. The Authority placed no weight on a letter of support provided from an MP as the content of the letter was inconsistent with the applicant’s claims: Authority’s reasons at [35].
Did the Authority make the error asserted?
The applicant submitted that it was unreasonable for the Authority to rely on the applicant’s omission to mention certain claims at the entry interview to make adverse credibility findings against the applicant.
I do not consider that the Authority’s reliance on the entry interview was unreasonable in the present case.
First, the Authority acknowledged the circumstances in which the entry interview took place. The Authority acknowledged that the interview lasted 50 minutes and was short and that the interview took place two months after the applicant had arrived in Australia. The Authority considered the questions asked of the applicant and the responses given. The Authority considered the applicant’s explanations for his omission to mention claims in his entry interview and was not satisfied by those explanations.
Second, it was open to the Authority to find that the applicant had an opportunity to raise the claims at the entry interview and did not do so. While the applicant’s submissions to this Court focused on the direction to give yes or no answers to the interviewer at the entry interview, a review of the transcript shows that where the applicant answered yes, he was asked additional questions. The Authority’s findings that the applicant had the opportunity to mention the matters he later relied on were open to it on the evidence.
I do not accept the applicant’s submission to the Court that the Authority misconstrued aspects of the applicant’s evidence at the entry interview. Counsel for the applicant submitted that the applicant attempted to raise at his entry interview his claim that he was abducted and tortured by Pillayan and the Karuna group, but was cut off by the interviewer. This is based on the response of ‘The ruling party, they took us - - -’ to the question ‘Did the police and security or intelligence organisations impact on your day-to-day life where you lived?’ and the applicant’s submission that the Pillayan was the paramilitary group aligned with the ruling party at the time. It is not possible to conclude from the limited evidence before the Court what the applicant’s complete answer may have been. However, given that the applicant was then asked about armed groups, political groups or religious groups operating in his area, and did not mention Pillayan or the LTTE or any other group other than religious groups, it was open to the Authority to find that the applicant had an opportunity to, but did not, raise the claims at the entry interview and to rely on that, in conjunction with other reasons, for making adverse credibility findings.
Counsel for the applicant also submitted that other answers given by the applicant at the entry interview were not inconsistent with his evidence. For example, the applicant said that he had not participated in any training in preparation for conflict, which is consistent with his later evidence that his training was in self-defence, and the applicant said that he had never been involved in any military service, which is consistent with his later evidence. In my view, little turns on this. These were not the questions that the Authority expressly referred to in its reasons, and it was open to the Authority to find that the applicant could have responded differently to other questions and mentioned his claimed recruitment by the LTTE, his claimed abductions, or the impact of the relevant organisations on his day-to-day life.
Third, the Authority in making its adverse findings did not rely solely on any omission from the information provided by the applicant at the entry interview. For each of the adverse findings made by the Authority, the Authority had multiple reasons for making the finding. This can be seen from the summary of the Authority’s findings above. For most of these findings, it is not controversial that multiple reasons were given. However, in relation to the Authority’s claim to have been forcibly recruited and trained by the LTTE, Counsel for the applicant submitted that this was the sole reason as it was mentioned first, and the ‘further’ reasons given were additional reasons on top of the principal reason. I consider that the Authority’s reasons for rejecting the applicant’s claim to have been recruited by the LTTE include all the reasons given at [13] to [18] of its reasons, and that the word ‘further’ used to describe the reasons at [17] and [18] does not indicate that those reasons were not significant, or that the failure to mention the claim at the entry interview was the sole, or even the principal, reason for the adverse finding. I also consider that the lengthier reference to the applicant’s entry interview in [13]-[16] of the Authority’s reasons, compared to other paragraphs referring to the applicant’s failure to raise a claim at the entry interview, amounts to the Authority describing the entry interview and its approach to assessing the evidence given by the applicant in that interview, upon its first main reference to that interview. I do not infer from this that the omission from the entry interview was the sole or principal reason for the adverse finding at [19].
At the hearing, Counsel for the applicant relied on the Full Court’s judgment in ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 (ARG15) to support a contention that the Authority’s reasons are cumulative and its reliance on omissions at the entry interview cannot be segregated from other reasons given by the Authority. I do not accept this submission.
The relevant reasoning of the Full Court in ARG15 arose in a very different context. In that case, the Full Court found that the Tribunal failed to have regard to relevant country information and, in considering whether the failure to have regard to relevant information amounted to jurisdictional error, said at [74]-[75]:
74.It is evident from the terms of [53] of the Tribunal’s reasons for decision (which are set out in [22] above), that the Tribunal’s reasons for rejecting the appellants’ application for review were cumulative. It is significant that the reasoning in [45] is effectively repeated in [53], but it is accompanied in that latter paragraph by a series of additional findings, all of which are preceded by the word “Further”. In other words, the Tribunal relied upon a series of adverse findings in coming to its ultimate conclusion. No single finding was relied upon by the Tribunal in coming to that conclusion. That is made clear by the fact that in the final sentence of [53], the Tribunal refers to “all of the reasons given above”, which necessarily draws together all the various strands which are identified in that paragraph.
75.It should be added that the Minister’s position is weakened even further when regard is had to the way in which the Tribunal used the “credibility concern” it formed in relation to the appellant mother’s evidence concerning her dowry to reject several other aspects of her claims, including those relating to the alleged hatred of her by her father-in-law…
That is a different circumstance from the present case and the relevant authorities in relation to reliance on omissions in entry interviews. I am not, in the present case, considering whether reasoning which is itself erroneous is a material error because it cannot be segregated from other reasoning. Rather, I am considering whether it was open to the Authority to rely on omissions from an entry interview, in circumstances where the Authority had regard to the limitations on entry interviews, as one of several reasons for rejecting claims. As submitted by Counsel for the Minister, the Authority took a ‘well-reasoned, multi-pronged approach’ in making its finding. The Authority’s reliance on the entry interview in this way is consistent with the approach accepted by the courts in cases such as MZZJO and ERO17 and can be easily distinguished from the situation in AYJ17, in which the Authority relied principally on the omissions from an arrival interview. The Authority approached the omissions from the evidence the applicant gave in his entry interview with appropriate caution.
Ground 1 is not established.
GROUND 2
By ground 2, the applicant asserts that the Authority acted unreasonably by failing to exercise its discretion in s 473DC of the Migration Act to invite him to attend an interview.
The applicant submitted that it was unreasonable for the Authority not to exercise the discretion in s 473DC of the Migration Act to invite the applicant to an interview before dismissing his claims to have been abducted and mistreated by the Sri Lankan authorities and by the Pillayan or Karuna Group, in part because the account was vague and lacking in detail, and in circumstances where the Authority did not have the opportunity to observe the applicant’s demeanour when he gave evidence in relation to having been sexually tortured.
Relevant legislation and authorities
Subject to the provisions in Part 7AA of the Migration Act, the Authority is to conduct its review based on the review materials provided by the Secretary without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1) of the Migration Act.
The Authority has a power to get new information conferred by s 473DC of the Migration Act. 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.
The power to get new information is a discretionary power and must be exercised reasonably: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21], [86]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3], [61], [80].
The Authority, in conducting the review, may assess for itself the information in the referred materials. As O’Bryan J said in BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079 at [31(b)]:
As a general proposition, Part 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate: DGZ16 [v Minister for Immigration and Border Protection (2018) 258 FCR 551] at [72]. That is so even if the Authority makes an adverse credibility finding against the referred applicant on the basis of the evidence: DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [74].
These comments were endorsed by the Full Court in FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456; [2020] FCAFC 29 at [59].
There are, however, situations where it can be unreasonable for the Authority to make adverse credibility findings against an applicant without first exercising the discretion in s 473DC of the Migration Act to provide new information. As the High Court explained in ABT17 at [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. …
The applicant’s evidence at the protection visa interview
The applicant’s claim to have been sexually tortured when he claimed to have been detained by the Sri Lankan authorities and the Pillayan or Karuna Group was raised for the first time at his protection visa interview.
In discussing his claim that he and his family were taken by the army and accused of being associated with the LTTE, the applicant claimed to have been tortured. In response to the question ‘Can you tell me what they did to torture you?’, the applicant responded:
Yes. Yes. They sexually tortured me, and I was very depressed at that time, and we had to give money to free myself. So – then when they freed me, they warned me and they requested me to come every two weeks and sign, and I was really depressed. And even now when I think about that, I feel very, very depressed.
Shortly after that, in discussing a claim to have faced harm from a ‘breakaway group from the LTTE’, the applicant said:
… And two days after that, they came in a van, abducted me and tortured me. And they said they will harm the family as well and this time, they sexually tortured me. I went into a state of depression and I was really depressed and was – I had no affinity for life at the time.
There was then some discussion about how long the applicant was detained for, and the applicant said:
Three days. At that time, I was not in a state of mind where I could describe the sexual harassment that was inflicted on me. I do not know how to say that one but, now, I am able to narrate these things a bit more in detail.
The next questions the interviewer asked the applicant related to the timing of the incident.
The delegate’s reasons
The delegate did not address the applicant’s claims to have been sexually tortured.
The delegate accepted, on the basis of country information, that it was plausible that the applicant was detained and questioned regarding his involvement with the LTTE.
The delegate did not accept the applicant’s claims in relation to the claimed events relating to Pillayan and the Karuna Group.
The Authority’s reasons
The Authority addressed the applicant’s claims to have been taken into custody by the Sri Lankan authorities at [20] to [24] of its reasons, and its findings in this regard, as well as the critical reasoning at [22] are summarised above. Relevantly, the Authority noted that there was ‘a lack of detail about what happened in his statement and interview’ and noted that the applicant did not claim to have been sexually tortured by authorities in 2007 until his protection visa interview in 2017. The Authority considered the applicant had added to his account as he went along.
The Authority addressed the applicant’s claims to have been abducted by Pillayan or the Karuna Group at [25] to [30] of its reasons. The findings made in those paragraphs are summarised above. For the purposes of this ground, the applicant relies on, in particular, [25] and [28] of the Authority’s reasons. In those paragraphs, the Authority said:
25.I have considered his claims of abduction by Pillayan because he asked for money back as he did not get a promised government job. Firstly, I consider that he would ask for money back in those circumstances lacks credibility. If the applicant or his parents had paid a bribe, it is difficult to believe they would ask for the money back. Secondly, the applicant’s description of the abduction was vague, lacked details and was inconsistent. For instance, in his statement he claimed he was abducted and kept overnight but at interview he claimed he was kept for 3 days. Further, while he claimed he was beaten in his statement, he claimed he was sexually tortured at the 2017 interview. I consider these are major inconsistencies. I do not accept the applicant’s explanation that he was confused. The applicant had representation and provided a written statement and submissions in 2016. It confirmed also that the statement had been read to him in Tamil.
…
28.I consider the inconsistencies in the applicant’s vague account of his abduction and the lack of detail is because the applicant was not recounting true events.
Did the Authority act unreasonably in not inviting the applicant to attend an interview?
As noted above there are two essential interrelated elements to the applicant’s submissions that the Authority acted unreasonably in failing to invite him to attend an interview.
The first is based on the Authority’s reasoning that the applicant’s claims were vague and lacking in detail. Counsel for the applicant submitted that it is important to note that the evidence the Authority was relying on in making this finding was the audio recording of the protection visa interview on a sensitive topic, namely, sexual torture. I consider this to be an overstatement of the position. Read fairly, the Authority’s findings about the applicant’s evidence being vague and lacking in detail were not in relation to the whether the applicant was sexually tortured but were in relation to the applicant’s evidence overall in relation to his claims to have been detained and tortured by the authorities and by Pillayan or the Karuna Group. The evidence that the Authority considered to be vague and lacking in detail was not solely his oral evidence at the protection visa interview, but also the evidence in relation to those claims in his written statement.
Counsel for the applicant submitted that to the extent that the Authority considered the applicant’s evidence to be vague and lacking in detail, the applicant’s answers were responsive to questions put to him at the protection visa interview. However, when it is properly understood that the Authority’s findings that the applicant’s evidence was vague and lacking in detail relates to the whole of his evidence in relation to the claimed abductions, and not specifically about his claims to have been sexually tortured, it is apparent that the applicant had an opportunity to give information about his claims in his written statement and in his protection visa interview. As submitted by Counsel for the Minister, the applicant was asked questions in relation to his relevant claims.
The second reason the applicant submitted that it was unreasonable not to invite him to attend an interview was because his claims related to sexual torture and the Authority did not have the opportunity to assess the applicant’s demeanour. Counsel for the applicant noted the sensitivities of the subject matter. He submitted that the Authority was not in a position to judge the demeanour of the applicant, and that may have been the reason the interviewer did not probe the applicant’s evidence on this topic. Counsel for the applicant submitted that it was unreasonable for the Authority to make the adverse findings based on the lack of detail in the applicant’s account without being able to assess his demeanour for itself.
In response, Counsel for the Minister submitted that this is not a case where the Authority made adverse findings based solely on the applicant’s demeanour, but it also relied on inconsistencies in the applicant’s evidence. The Minister submitted that in the circumstances of the present case, it was not unreasonable for the Authority to make its decision without having observed the applicant’s demeanour.
I do not consider that it was unreasonable for the Authority not to invite the applicant to give new information at an interview in this matter.
Both parties made submissions about whether this matter is on all fours with ABT17. I do not consider that it is. This is not a matter, such as ABT17, where the Authority made adverse credibility findings against the applicant, in relation to matters accepted by the delegate, based solely on its own perception of the applicant’s credibility. Both the delegate and the Authority rejected the applicant’s claims in relation to Pillayan and the Karuna Group. The Authority’s reasons show that it had regard to the whole of the material available to it and that its findings were based, in large part, on what it identified as inconsistencies in the applicant’s evidence.
While the delegate accepted that it was plausible that the applicant may have been detained by the Sri Lankan authorities and questioned about his involvement with the LTTE, the delegate’s consideration was much more cursory than the Authority’s and was not based on any positive assessment of the applicant’s demeanour. It was rather an acceptance, based on country information, that the claim, at a high level of generality, was plausible. The Authority considered the applicant’s claim in more detail and identified inconsistencies in his evidence, noted the lack of detail and the failure to mention the claimed sexual assault until 2017 and considered that the applicant had added to his account as he went along. This is not a situation where the delegate made positive findings about the applicant’s demeanour and the Authority rejected the applicant’s account based solely on how he sounded on the audio recording.
The present case is therefore readily distinguishable from ABT17. That, however, is not a complete answer to the ground, as an assessment of unreasonableness is necessarily fact dependent and not to be made simply by comparing the facts of other cases where the courts have found unreasonableness.
I have considered the opportunities the applicant had to give evidence about his claims for protection, including at the protection visa interview. I am satisfied that he was asked questions and given an opportunity to elaborate on his claims for protection. The Authority had before it, in the review materials, the information required to complete its statutory task and was not prevented from completing its statutory task by any gaps in the information before it. The Authority was not required to invite the applicant to attend an interview to address any perceived vagueness or lack of detail in his claims. Further, it was not unreasonable, in the circumstances of the present case, including the reasons for the Authority’s findings and the manner in which the applicant’s claims were articulated over time, for the Authority not to invite the applicant to attend an interview so it could assess his demeanour for itself.
Taking into account the statutory scheme in which the Authority made its decision and the reasons that it gave for rejecting the applicant’s evidence, it was not unreasonable for the Authority to make the findings that it did without first inviting the applicant to attend an interview to give new information.
Ground 2 is not established.
CONCLUSION
The applicant has not established that the Authority decision is affected by jurisdictional error. I therefore dismiss the judicial review application.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 10 September 2024
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