EZH17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1057
•17 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EZH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1057
File number: SYG 3485 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 17 October 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision not to grant the applicant a protection visa – whether the Authority misconstrued s 473DD of the Migration Act 1958 (Cth) – whether the Authority erred by making a finding based on the inconsistency of the information provided by the applicant – whether the Authority misunderstood its task by relying on an omission by the applicant at an entry interview – whether the Authority unreasonably failed to exercise or consider exercising its discretion in s 473DC of the Migration Act 1958 (Cth) to invite the applicant to comment – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 36, 46A, 65, 473CA, 473CB, 473DC, 473DD, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC 13
BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 594; [2020] FCAFC 189
BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221; [2017] FCA 958
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
MZZJO v Minister 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
SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089
Division: Division 2 General Federal Law Number of paragraphs: 108 Date of hearing: 5 July 2024 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Mr B Zipser (direct access Counsel) Counsel for the First Respondent: Mr G Johnson Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 3485 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EZH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
17 OCTOBER 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)[1].
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Immigration Assessment Authority are to the Authority as it existed at the time the applicant’s matter was before it for review.
The applicant’s grounds of application assert that the Authority made jurisdictional errors by:
(a)misconstruing s 473DD of the Migration Act in considering whether new information provided by the applicant met the requirements of that section;
(b)making a finding that it was not satisfied of a claim made by the applicant in circumstances where it:
(i)relied on an ‘inconsistency’ that did not exist;
(ii)misunderstood its task on review by relying on the applicant’s failure to mention a claim at his entry interview; and
(iii)rejected the claim without inviting the applicant to comment; and
(c)unreasonably failing to exercise its discretion under s 473DC of the Migration Act.
For the reasons explained below, I have found that the applicant has not established that the Authority made any jurisdictional error in its decision. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant entered Australia by sea in October 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 3 January 2013 the applicant participated in an ‘Irregular Maritime Arrival Entry Interview (entry interview) with an officer of the Minister’s Department.
After the Minister lifted the bar in s 46A of the Migration Act, the applicant applied for a protection visa on 19 July 2016. The applicant’s claims for protection were set out in a statement that accompanied his protection visa application.
On 3 February 2017 the applicant attended an interview with an officer of the Department to discuss his claims for protection.
On 6 March 2017 a delegate of the Minister refused to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
The applicant, via his representative, provided a written submission and new information to the Authority on 5 April 2017.
On 26 October 2017 the Authority affirmed the delegate’s decision not to grant the applicant the applicant a protection visa.
SUMMARY OF THE AUTHORITY DECISION
The Authority had regard to the material given by the Secretary under s 473CB of the Migration Act and the written submission provided by the applicant’s representative on 5 April 2017 to the extent that it made arguments and referred to material already before the Authority. The Authority was not satisfied that new information provided by the applicant met the requirements of s 473DD of the Migration Act. To the extent the Authority’s application of s 473DD of the Migration Act is relevant to the grounds of application, it is discussed in detail below.
The Authority accepted that the applicant is a Hindu Tamil from the Eastern Province of Sri Lanka. The Authority had regard to a letter from a social worker who assisted the applicant and was mindful of the difficulties the applicant may have had in presenting his claims for protection throughout the application process. The Authority accepted that the applicant’s memory of the detail and chronology of events in his personal timeline may not always be accurate or consistent. The Authority was satisfied that the applicant was able to adequately present his claims for protection and did not make any adverse credibility findings against the applicant on the basis of inconsistencies in dates or by omitting information about a sibling who died before the applicant was born.
The Authority accepted that fighting between the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE) occurred in his home district between 1990 and 1995 which affected the applicant and his family. While the Authority accepted that the applicant had some limited exposure to the LTTE through meetings at his school, it did not accept that army officers suspected the applicant of being involved in the LTTE on this basis.
The Authority was willing to accept that two of the applicant’s cousins were forcibly recruited by the LTTE as combatants and died during the conflict. The Authority was also satisfied that a third cousin went missing in 1991 and was presumed to be dead. While the Authority accepted that the applicant may have had incidental contact with his cousins when visiting their home and vice versa, the information before it did not suggest that the applicant was in any way involved in their LTTE activities. The Authority accepted that the applicant interacted with his cousin who went missing but given the applicant’s age at the time his cousin went missing, the Authority considered that the applicant would not have been perceived as having any involvement with any activities that his cousin engaged in that may have given rise to a suspicion that he was associated with the LTTE.
The Authority considered that the ease with which the applicant was able to obtain a passport and travel overseas between 2004 and 2007 indicated that he was not of any adverse interest to the Sri Lankan authorities or considered to have any pro-LTTE profile.
The Authority accepted that from 2009, the applicant became involved with the Tamil National Alliance (TNA) party, attended meetings and met senior TNA figures and provided support of a low profile and administrative nature to a TNA candidate for the 2010 parliamentary election. The Authority accepted that from 2007 until June 2010, the applicant did not experience any adverse encounters with the Sri Lankan authorities on the basis of any imputed involvement with the LTTE, or due to having worked for a foreign Non-Governmental Organisation (NGO), or because of his involvement with the TNA.
The Authority accepted that the applicant worked as a storekeeper for a different foreign NGO in 2010, and that it was plausible that the applicant was intimidated and threatened by members of the Karuna Group while in that role. However, the Authority was not satisfied that the applicant was a person of interest to the Karuna Group outside his role as a storekeeper who had access to materials from the foreign NGO’s store. The Authority was also not satisfied that the applicant was ever considered to be of adverse interest to the Sri Lankan authorities due to having worked for a foreign NGO.
The Authority considered it was plausible that from January 2012 the applicant assisted the campaign of a TNA candidate in the 2012 provincial council election. The Authority described the applicant’s role as being amongst a number of campaigners and involving low-profile administrative duties. The Authority considered it to be plausible that, while campaigning, the applicant was exposed to threats and harassment from unknown men on one occasion but considered this to be opportunistic activity and was satisfied that the applicant faced no further incidents from these men.
The Authority was not satisfied that two Criminal Investigation Department (CID) officers attended the applicant’s home and questioned and threatened him in 2012 as he had claimed. The Authority was not satisfied that the applicant held a profile with the CID for imputed LTTE involvement arising from his connection with his cousins or arising from having worked overseas in Kuwait from December 2005 until January 2007 or arising from his support for the TNA.
Based on considerable doubts about the applicant’s evidence, and that the applicant did not otherwise hold a profile with the authorities for LTTE involvement, the Authority did not accept that the applicant was taken by four uniformed army officers by jeep to the local camp and interrogated and mistreated for approximately four hours before being released on the intervention of the TNA candidate.
Given the Authority’s finding that the applicant’s role supporting the TNA candidate’s campaign was low-profile and administrative in character, and that despite having an altercation at the polling booth on the day of the election the applicant was able to leave the polling booth peacefully and without further incident, the Authority did not accept that the applicant received threatening telephone calls in the days after the election outcome from unidentified people threatening to kill him. The Authority accepted that the applicant’s sister-in-law and son were subjected to an attack by unknown men and sustained injuries after the election, the Authority did not accept that this attack was connected to the applicant in any way, or that it would give rise to a real chance that the applicant would suffer any harm.
The Authority was satisfied there was not a real chance of serious harm to the applicant on return to Sri Lanka on the basis of being a Tamil male from the Eastern Province. The Authority was also not satisfied that there was a real chance the applicant would face harm arising from his past TNA-related activities. The Authority did not consider that the applicant had a profile with the Sri Lankan authorities for involvement with the LTTE, due to his involvement in the TNA and his support of TNA candidates in elections in 2010 and 2012, for having worked with foreign NGOs, or due to his ethnicity and his area of origin or any combination of these matters. The Authority was not satisfied that there was a real chance that the applicant would be targeted by the Sri Lankan authorities on return to Sri Lanka. The Authority was also not satisfied that the applicant would face a real chance of serious harm on the basis of being a returned asylum seeker or for his illegal departure.
Based on these findings, the Authority was not satisfied that the applicant faced a real chance of serious harm now or in the reasonably foreseeable future if returned to Sri Lanka, and on this basis found that the applicant did not meet s 36(2)(a) of the Migration Act. Based on the same factual findings, as well as findings that the applicant would not face a real risk of significant harm on account of his mental health and that the treatment he could expect to face for breaching the Immigrants and Emigrants Act would not amount to significant harm, the Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that the applicant would suffer significant harm. Therefore he did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his application to this Court on 14 November 2017. The judicial review application was made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant filed an amended application on 7 June 2024, which contains the following grounds (reproduced without alteration):
1.The applicant provided to the Immigration Assessment Authority (“IAA”) a letter dated 20 March 2017 which, for reasons explained by the applicant’s agent in a submission sent to the IAA on 5 April 2017, responded to a finding made by the Minister’s delegate. The IAA at [5], in considering the exercise of power under s 473DD of the Migration Act 1958 (Cth), was “not satisfied there are exceptional circumstances to justify considering” the letter. In light of AUS17 v Minister (2020) 269 CLR 494, the IAA misconstrued s 473DD in a manner which involved jurisdictional error.
2.The applicant claimed that in June 2012 he was visited by two CID officers. The IAA at [33] was “not satisfied that two CID officers attended the applicant's home” as he claimed. The IAA fell into jurisdictional error in making this finding. Among other reasons:
a)The IAA at [33] relied on “the inconsistency of the information the applicant provided during his entry interview about his exposure to police and intelligence services”. There was no “inconsistency”.
b)The IAA at [32] relied on the fact that “the applicant made no mention of this encounter during his entry interview”. The IAA’s reliance “on a failure to mention details at the entry interview” involved “a misunderstanding of its task on review”: see MZZJO v Minister (2014) 239 FCR 436 at [57].
c)The Minister’s delegate at CB 35 accepted the claim. For the IAA to reject the claim based on concerns of the IAA, without giving the applicant an opportunity to comment through exercise of its power under s 473DC, was legally unreasonable.
3.The applicant claimed that in early August 2012 army officers took the applicant for interrogation for a few hours where he was mistreated. The IAA at [37] did not accept the claim. The IAA fell into jurisdictional error in making this finding. Among other reasons, the Minister’s delegate at CB 36 accepted the claim, relying in part on “the clarity and spontaneity of the applicant’s recall”. For the IAA to reject the claim based on concerns of the IAA, without giving the applicant an opportunity to comment through exercise of its power under s 473DC, was legally unreasonable.
4.The applicant claimed that between 8 and 26 September 2012, while he was in hiding, he received threatening phone calls from unidentified callers. The IAA at [41] did not accept the claim. The IAA fell into jurisdictional error in making this finding. Among other reasons, the Minister’s delegate at CB 36 accepted the claim, relying in part on “the applicant’s consistency on this point”. For the IAA to reject the claim based on concerns of the IAA, without giving the applicant an opportunity to comment through exercise of its power under s 473DC, was legally unreasonable.
The evidence before the Court comprises the court book filed by the Minister on 13 July 2018.
GROUND 1
By ground 1 the applicant asserts that the Authority misconstrued s 473DD of the Migration Act in determining whether it should consider new information provided by the applicant.
Section 473DD of the Migration Act
Section 473DD of the Migration Act provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17), the majority of the High Court said with respect to the proper approach to the application of s 473DD of the Migration Act at [11]-[12] (footnotes omitted):
11Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
The Authority’s approach to new information before it
The applicant provided new information to the Authority in response to a finding made by the delegate about one of the applicant’s claims. In the statement provided with his visa application, the applicant claimed to fear harm because of his association with some cousins who were involved with the LTTE, including his cousin who went missing in 1991. In making findings about the applicant’s family members’ involvement with the LTTE, the delegate did not accept that the applicant had a strong connection with his cousin who had been missing since 1991, and this was based on the applicant’s young age at the time of his cousin’s presumed death.
When the matter was before the Authority, on 5 April 2017 the applicant, via his representative, provided the Authority with the following additional material addressing the applicant’s connection with his cousin:
(a)a written submission from the applicant’s representative dated 5 March 2013; and
(b)a letter from the applicant’s uncle dated 20 March 2017, with an English translation dated 21 March 2017.
In the written submission, the applicant’s representative provided the following explanation as to why the letter from the applicant’s uncle was only obtained after the delegate’s decision:
The above-mentioned information was only obtained after the decision of the SHEV interview because the delegate did not believe that the applicant had a strong connection with [his cousin]. On that basis, this information could not have been provided to the delegate. Had this information been known by the delegate, it may have affected the consideration of the referred applicant’s claims. We state that this is an exceptional circumstance especially when a person’s life is at risk. We respectfully request the presiding reviewer to consider this new information as set out in section 473DD of the Migration Act. On the new evidence put before the presiding reviewer we submit that the applicant faces a real chance of persecution if returned to Sri Lanka and as such has a well-founded fear.
The Authority addressed the new information provided by the applicant at [4]‑[5] of its reasons, where it said:
4.On 5 April 2017, the applicant’s representatives forwarded to the IAA a submission on behalf of the applicant. The submission contains argument about the findings and the basis of the delegate’s decision. Much of the information referred to in the statement is already before me in the materials given by the Secretary. To the extent the submission contains argument and material which is already before me, I do not consider this to be new information.
5.Attached to the submission was a letter, dated 20 March 2017, attesting to the familial connection between the applicant and his cousin who went missing. The letter was furnished with an English translation of its contents. The letter was not before the delegate. It is new information. As the letter post-dates the date of the delegate’s decision, I am satisfied the letter was not in existence and could not have been provided to the delegate prior to their decision. The information in the letter is consistence with other material provided by the applicant about his family connections and I consider it is credible personal information. I consider that s.473DD(b) is met. However, I note that the information that is the subject of the letter was known to the applicant well before the delegate’s decision, was presented as part of the applicant’s claims for protection, and it appears to have been within his control to have provided evidence in support of his relationship with his cousin at an earlier stage in his application process. For these reasons, I am not satisfied there are exceptional circumstances to justify considering the new information.
The parties’ submissions in relation to the alleged error
The issue raised by ground 1 is whether the Authority properly construed s 473DD of the Migration Act in accordance with the High Court’s judgment in AUS17.
The applicant submitted that, in the light of AUS17, and given that the Authority accepted that the requirements of s 473DD(b)(i) and (ii) were met and that the applicant’s representative provided a reasonable explanation for why the letter was not obtained until after the delegate’s decision:
(a)it is unclear how the applicant could not satisfy s 473DD(a);
(b)it is clear from the Authority decision that the Authority did not construe s 473DD in the manner explained by the High Court in AUS17; and
(c)it follows that the Authority misconstrued s 473DD in a manner which involved jurisdictional error.
In his oral submissions, Counsel for the applicant further submitted that the single reason given by the Authority for there not being exceptional circumstances was that the evidence was corroborative and that, if this reasoning process is correct, it would mean that an applicant could never provide to the Authority corroborative evidence to support or bolster evidence previously provided by the applicant to the delegate in support of his or her claims. Counsel for the applicant submitted that the Authority misconstrued s 473DD or the meaning of ‘exceptional circumstances’ by construing it in a manner that prevents an applicant from providing corroborative evidence in response to a finding of the delegate. Alternatively, Counsel for the applicant submitted that the Authority erred in the light of AUS17, and did not understand that its favourable findings in relation to s 473DD(b)(i) and (ii) were also supportive of there being exceptional circumstances.
The Minister submitted that the Authority did not err and, contrary to the applicant’s submission, the Authority did precisely what the High Court in AUS17 stated was required with respect to s 473DD. The Minister submitted that the Authority first addressed s 473DD(b), drew conclusions by reference to that paragraph, and took those matters into account in considering whether there were exceptional circumstances under s 473DD(a). The Minister submitted that the applicant’s argument suggests that having found s 473DD(b) was satisfied, it followed that exceptional circumstances existed, and the Authority erred in failing to so find. The Minister submitted that on a constructional point, the applicant’s submission should be rejected because it would leave s 473DD(a) with no work to do. The Minister submitted that the Authority’s finding that even though the letter post-dated the delegate’s decision, the information in the letter could have been provided to the delegate was open to the Authority and, as the question of what constitutes exceptional circumstances is incapable of precise or definite categorisation, it was open to the Authority to reason in the way it did.
In his oral submissions, Counsel for the Minister submitted that the applicant had not suggested that there was some exceptional circumstance that was proffered or that was evident on the face of the materials that the Authority overlooked. Rather, the applicant appears to be arguing that there is some form of common incongruity in the Authority having accepted s 473DD(b) was met but then going on to find that exceptional circumstances did not exist. Counsel for the Minister submitted that it is not the case that the Authority’s position suggests that an applicant can never provide corroborative evidence and avoid the prohibition in s 473DD. The issue in this case was that the applicant had not identified what was exceptional about the case and the Authority, in looking at the general circumstances, permissibly focused upon the content of the letter and found that it was within the applicant’s control to have provided evidence in support of his relationship with his cousin at an earlier stage in the application process. Counsel for the Minister submitted that the Authority’s application of s 473DD of the Migration Act was quite orthodox.
Did the Authority misconstrue s 473DD of the Migration Act?
I do not accept that the Authority misconstrued s 473DD of the Migration Act in the light of AUS17 or that it otherwise misconstrued the term ‘exceptional circumstances’.
As required by AUS17, the Authority first considered whether the new information satisfied the requirements of s 473DD(b)(i) and (ii) of the Migration Act. It was satisfied that the requirements of both limbs of s 473DD(b) were met. The Authority then proceeded to consider whether there were exceptional circumstances for the purposes of s 473DD(a). Based on a fair reading of the Authority’s reasons, I accept the Minister’s submissions that the Authority had regard to its findings in relation to the requirements of s 473DD(b) in reaching its finding for the purposes of s 473DD(a). While I acknowledge that the Authority did not explicitly state that its findings on the requirements of s 473DD(b) informed its assessment of s 473DD(a), neither party has suggested that it was required to explicitly state this. Rather, to the extent that the applicant submitted that the Authority did not construe s 473DD in accordance with AUS17, the applicant appears to rely on the failure to find that s 473DD(a) was satisfied as a basis for inferring that the Authority did not have regard to its findings on s 473DD(b) in reaching its finding on s 473DD(a) or for not understanding that its favourable findings on s 473DD(b) could support a favourable finding on s 473DD(a).
I do not consider that it is appropriate to draw any inference that the Authority misconstrued its statutory task under s 473DD of the Migration Act simply from the Authority not finding that s 473DD(a) was met in circumstances where it found both limbs of s 473DD(b) were met. While the High Court in AUS17 suggested at [11] that satisfaction of both limbs of s 473DD(b) of the Migration Act would ‘heighten the prospect’ of s 473DD(a) being met, there is nothing in AUS17 to suggest that in every case in which the Authority finds that both limbs of s 473DD(b) are satisfied, s 473DD(a) must also be satisfied. The consideration of exceptional circumstances is not limited to the consideration of the requirements of s 473DD(b) and it is open to the Authority to have regard to other matters in determining whether there are exceptional circumstances. As the courts have reiterated on a number of occasions, precisely what constitutes ‘exceptional circumstances’ is incapable of exhaustive definition: see, for example, Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 (Plaintiff M174) at [30]; BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221; [2017] FCA 958 at [41]-[43].
I accept the Minister’s submission that it was open to the Authority to proceed as it did in the present case, namely, by having regard to the subject matter of the new information, the applicant’s knowledge of the subject matter, that the subject matter was presented as part of the applicant’s claims for protection and that it was within the applicant’s control to have provided evidence of the relationship with his cousin at an earlier stage of the application process, and placing weight on those matters in finding that there were not exceptional circumstances to justify considering the new information.
This does not reflect any misunderstanding on the part of the Authority and does not suggest that corroborative evidence can never meet the requirements of s 473DD(a) of the Migration Act. There may be many situations in which the Authority finds that corroborative evidence does meet the requirements of s 473DD(a) of the Migration Act. However, the Authority, having regard to the particular circumstances of this particular case, was not satisfied that there were exceptional circumstances to justify considering the new information addressed at [5] of its reasons. The applicant has not established that there is any error in the Authority’s approach in this particular case.
Ground 1 is not established.
GROUND 2
By ground 2, the applicant asserts that the Authority made jurisdictional errors in finding at [33] of its reasons that it was not satisfied that two CID officers attended the applicant’s home as he had claimed. The jurisdictional errors said to arise from this finding are that:
(a)the Authority relied on inconsistent information the applicant provided during his entry interview about his exposure to police and intelligence services, when in fact there was no inconsistency;
(b)the Authority relied on the failure of the applicant to mention the incident during his entry interview; and
(c)the Minister’s delegate accepted the claim and it was therefore legally unreasonable for the Authority to reject the claim without first giving the applicant an opportunity to comment.
The delegate’s finding and the Authority’s reasoning
The applicant’s ground relates to the finding of the Authority at [33] of its reasons. It is important to read this paragraph in the context of [31] and [32]. The Authority said at [31]-[33]:
31.The applicant claimed that in June 2012, he was visited in [place redacted] by two CID officers in civilian clothing. The applicant stated that during this visit the men questioned him about his relatives, including whether they were residing in India. They also accused him of being involved with the LTTE. When the applicant responded by saying he had been sent away to Qatar to avoid forcibly being recruited by the LTTE, the men accused him of having gone to Qatar to raise funds for the LTTE. The applicant said that the men told him he was not to support the TNA in any way and they would come back for further information. Given the applicant’s relatively minor role with the TNA, and that his association with his cousins was low–profile and consisted of family visits when he was growing up, that he was able to travel on a genuine passport overseas on multiple occasions between December 2005 and January 2007, and he had not previously been questioned or experienced adverse encounters with the CID, police or army on suspicion of being involved with the LTTE, I have considerable doubt that CID officers would attend at his home a number of years after the conflict had ended to question him about LTTE connections, even as a means to pressure him not to support the TNA. I note that on the information before me, the applicant does not claim to have been mistreated during the questioning by CID officers, nor was he arrested or detained or formally charged. The applicant stated that the CID officers indicated they would come back for more information, but on the evidence before me, they do not appear to have done so.
32.The applicant made no mention of this encounter during his entry interview and given its proximity to his departure from Sri Lanka and the involvement of the CID, I would have expected some mention during his entry interview to have been made. I note that in response to a question during the interview about whether the police or intelligence organisations impact on his day-to-day life, the applicant responded ‘no’. Given the applicant’s entry interview occurred with closer proximity in time to the events of 2012 in Sri Lanka, I have accorded it greater weight than the applicant’s written claims outlined in his visa application of 2016 on this issue.
33.Considering the applicant’s profile with the Sri Lankan authorities, his level of involvement with the TNA, the circumstances of the claimed encounter and the inconsistency of the information the applicant provided during his entry interview about his exposure to police and intelligence organisations, I am not satisfied that two CID officers attended the applicant’s home and questioned and threatened him as he has claimed. I am not satisfied that the applicant holds a profile with the CID for imputed LTTE involvement arising from his connection with his cousins or arising from having worked overseas in Kuwait from December 2005 until January 2007 or arising from his support for the TNA.
The Authority’s finding can be contrasted with that of the delegate. The delegate was satisfied that the applicant was visited by men from the CID in June 2012 and questioned about his LTTE links.
The parties’ submissions in relation to the alleged errors
The applicant submitted that the alleged inconsistency identified by the Authority was between:
(a)an answer ‘No’ by the applicant at the entry interview to the question ‘Did the police and security or intelligence organisations impact on your day to day life in your home country?’; and
(b)the applicant’s claim in his statutory declaration concerning a visit to his house in June 2012 by two CID officers in civilian clothing who asked him some questions, accused him of raising money for the LTTE, accused him of being LTTE and then left the house never returned.
The applicant submitted that there was no inconsistency because:
(a)while the applicant did not state the length of the June 2012 visit in his statutory declaration, the applicant’s description of the visit suggests it was not more than 30 minutes;
(b)based on the applicant’s statutory declaration, the visit had no impact on the applicant beyond the day, or even during the visit;
(c)even if a visit occurred in June 2012, it is not surprising that the applicant, in January 2013, would not consider that the visit had an impact on his day-to-day life, noting that a person having interaction with the police does not mean that the police have an impact on the person’s day-to-day life.
Counsel for the applicant submitted that the question regarding the impact of police or security forces on the applicant’s day-to-day life suggested that the applicant was being asked about the ongoing impact. Counsel for the applicant submitted that, in circumstances where there were other events that occurred between the claimed event in June 2012 and the applicant’s departure from Sri Lanka, there is a reasonable explanation why the applicant answered ‘No’ to the question. Although the applicant’s primary submission was that there was no inconsistency, Counsel for the applicant acknowledged at the hearing that it would be hard for him to persuade the Court that no reasonable decision-maker could have found that there was an inconsistency.
Alternatively, the applicant submitted that to the extent that the Authority relied on an inconsistency to reject this claim, the Authority made the error explained in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC 133 (AVQ15) at [27]-[28], where the Full Court said:
27.Secondly, the term “inconsistency” should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis. As we have noted above, adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.
28.Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.
Counsel for the applicant submitted that the Authority in the present case did not engage in the assessment of the significance of the inconsistency, the weight to be given to it in the context of the case as a whole, whether the inconsistency related to a central or a peripheral matter and whether there was an acceptable explanation for the applicant having given inconsistent evidence.
The applicant submitted that the Authority’s reliance on the applicant’s failure to mention the encounter during the entry interview involved a misunderstanding of its task on review, in the sense described in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 (MZZJO), where the Full Court said at [56]-[57]:
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.
While the applicant acknowledged that in the present matter the Authority relied on matters additional to the applicant’s failure to mention the encounter at the entry interview, he submitted that there are problems with the other aspects of the Authority’s reasoning process or procedure, as discussed elsewhere in this ground.
The applicant submitted that it can be unreasonable in some cases for the Authority not to exercise the discretion in s 473DC of the Migration Act where the delegate accepted an integer of the applicant’s claim and the Authority rejects that integer. The applicant submitted that it was unreasonable for the Authority not to exercise its discretion in s 473DC to invite the applicant to provide new information in the circumstances of this case, including that:
(a)the delegate, after questioning the applicant about a central claim (the visit by two CID officers in June 2012), accepted the claim;
(b)the Authority was considering rejecting the claim for reasons not evident from the delegate’s decision;
(c)in addition to considering rejecting the integer of the applicant’s claim the subject of the finding considered in this ground, the Authority was also considering rejecting the integer of the applicant’s claims discussed in grounds 3 and 4 below; and
(d)the applicant, to the Authority’s knowledge, had engaged a migration agent who made thoughtful submissions to the Authority, and it is relevant that the Authority was aware of the applicant’s ability to provide probative information in response to an invitation to provide new information made under s 473DC of the Migration Act.
The Minister submitted that it must immediately be noted that the basis for the Authority’s rejection of the claim the subject of this ground was multi-faceted. The Authority rejected the claim because of the applicant’s profile with the Sri Lankan authorities, his level of involvement with the TNA, the circumstances of the claimed encounter and the inconsistency of the information the applicant provided during his entry interview about his exposure to police and intelligence organisations. The applicant’s challenge raised by this ground relates to just one of these reasons.
The Minister submitted that the Court must proceed with caution when invited to find jurisdictional error in an adverse finding merely because one strand of the supported reasoning for the finding is impugned, citing SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 at [14]-[15]. The Minister submitted that it was open to the Authority to expect some consistency in the applicant’s account of what was presented in his protection claims as a significant element and justification for the fear that prompted him to leave his country. The Minister noted the Authority’s reliance on a negative answer to a direct question at the entry interview in respect of whether the police and security intelligence organisations impacted on the applicant’s day-to-day life in his home country, and submitted that, contrary to the applicant’s submission, it was not necessarily consistent that the applicant would answer ‘No’ to this question in circumstances where he had been visited by the CID which must have been taken to have a sufficient impact on him to justify inclusion of the event in his protection claims. The Minister submitted that it was open to the Authority, as a finder of fact, to determine that the accounts were inconsistent and the finding is not jurisdictionally wrong just because another decision-maker might not have come to this conclusion.
In his oral submissions, Counsel for the Minister submitted that it was at least open to the Authority to focus on a failure by the applicant to raise in his entry interview the 2012 visit, because the event was obviously of sufficient significance that the applicant raised it in his visa application, but the point the Authority made was that at a time more temporally proximate to the alleged event, he had the entry interview, and at that entry interview, he made no mention of it. The Authority goes further than to say that no mention was made of it.
In response to the applicant’s reliance on AVQ15, Counsel for the Minister submitted that the reasoning at [28] of that paragraph needs to be read subject to the reasoning of Snaden J in BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 594; [2020] FCAFC 189 (BJO18) at [157]. In that paragraph, his Honour said:
Again with respect, I do not accept that the IAA should be understood not to have turned its mind to any of the considerations listed in the passage above. The basis or bases upon which this court might infer such failures were not explored beyond assertion. The appellant’s contention that the IAA did not “expressly assess”—that is to say, record in its written reasons any assessment of—the significance that it attached to the existence of the relevant evidential inconsistencies may readily be accepted. I am unable, however, to see how that alone might suffice as a basis upon which this court might, on appeal, draw the inferences that the appellant would have us draw. To the contrary, the IAA appears very much to have turned its mind to whether or not the presence of the relevant evidential anomalies was significant enough to warrant its rejection of the appellant’s narrative. Reasonable minds might differ as to whether they did; but I am unable to accept that the IAA might be said, in this case, to have relevantly misunderstood the nature of its task, much less performed it unreasonably or unfairly, or otherwise in a way unauthorised by the Act.
The Minister submitted that, as expressed in MZZJO, a decision-maker is not prevented from relying on omissions by an applicant during an entry interview, and it is only when a decision-maker relies only on a failure to mention details at an entry interview that it might involve a misunderstanding of its task of review. The Authority in the present case gave several reasons for rejecting the claim that the applicant was visited by two CID officers in June 2012 and the fact that one of those factors was an omission at the entry interview does not give rise to any error.
In his oral submissions, Counsel for the Minister submitted that the Authority’s reliance in this case was not merely on an omission from the entry interview, but was rather the response ‘No’ that the applicant gave to the question about whether the police or intelligence organisations impacted on his daily life. Counsel for the Minister submitted that the Authority was permitted to place some weight on that factor amongst other reasons for determining that the alleged event did not occur. Counsel for the Minister further submitted that MZZJO expresses a qualified caution, rather than a hard and fast rule, about reliance by a decision-maker on what is said or not said at an entry interview.
The Minister submitted that the applicant’s submission that the Authority erred by not exercising the discretion in s 473DC of the Migration Act cannot stand with authority, citing DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 (DGZ16) at [70]-[76], Plaintiff M174 at [17] and BJO18 at [174], [176]. The Minister further submitted that s 473DC is not a mechanism designed for the applicant to be afforded procedural fairness. The Minister submitted that the Authority found that there was an inconsistency between the applicant’s protection claims as set out in his protection visa application and the information presented during his entry interview and that was a finding of fact open to the Authority without the need for additional new information from the applicant. This is not a case where the Authority needed additional information from the applicant before it could make the findings it did.
Was it open to the Authority to find that the applicant provided inconsistent information at his entry interview?
The information that the Authority considered to be inconsistent was the applicant’s answer ‘No’ in his entry interview to the question ‘Did the police and security or intelligence organisations impact on your day to day life in your home country?’ and his later claim in his written statement provided with his protection visa application about the visit of the CID to his house in June 2012.
While Counsel for the applicant made considered and reasonable submissions as to ways in which the question at the entry interview might be interpreted so that the applicant’s answer is not inconsistent, the interpretation of the question as preferred by Counsel for the applicant is not the only available interpretation. I accept the Minister’s submission that it was open to the Authority, on the material before it, to find that the applicant’s answer at the entry interview was inconsistent with his later claims for protection. Such a finding is not one that no rational or logical decision-maker could reach on the material before the Authority: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130].
Insofar as the applicant’s assertion of error is based on AVQ15, I am unable to conclude that the Authority failed to have regard to the significance and weight of the inconsistency in the manner alleged. While the Authority did not expressly refer to each of the types of matters identified at [28] of AVQ15, for the reasons explained in BJO18, that does not necessarily mean that they were not considered. The Authority in the present case compared the information in the applicant’s entry interview in 2013 and the statement outlining his protection claims made in 2016 and gave greater weight to the information at the entry interview given the greater proximity to the relevant event. The Authority did not consider the inconsistency in isolation, but rather considered the claim of the applicant in the context of his claims as a whole, including his lack of relevant profile with the Sri Lankan authorities, and gave weight to the inconsistency as one of several reasons for rejecting the relevant claim. I am unable to discern any error in this approach.
Did the Authority make a jurisdictional error by relying on a failure of the applicant to mention the incident in his entry interview?
The approach of the Authority in the present matter is not inconsistent with the caution relating to the reliance by a decision-maker on omissions from an applicant’s entry interview given by the Full Court in MZZJO.
Importantly, as noted by the Minister and as acknowledged by the applicant, the Authority in the present case did not rely solely on the applicant’s failure to mention this claim at his entry interview. It was one of a number of reasons given by the Authority for not being satisfied that the claimed event occurred. Further, in addition to the failure to mention the claim, as described above, the Authority also had regard to the applicant’s answer to the question about the impact of police and security or intelligence organisations on the applicant’s day-to-day life, which it found to be inconsistent with his subsequent claim relating to the incident in June 2012.
There is nothing in the manner in which the Authority relied on the omission in the entry interview that suggests that it misconstrued its statutory task.
Did the Authority act unreasonably in rejecting the claim without exercising its discretion in s 473DC of the Migration Act to get new information from the applicant?
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 Authority is required to act reasonably in the exercise of its discretion to get new information in s 473DC of the Migration Act: Plaintiff M174 at [21], [86]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3], [61], [80].
There are some cases in which it can be unreasonable for the Authority not to exercise, or consider exercising, the discretion in s 473DC of the Migration Act to get new information from an applicant before rejecting a claim, or an integer of a claim, made by the applicant that was accepted by the delegate. DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43 (DPI17) and ABT17 are examples of such cases.
However, the task of the Authority is to evaluate for itself the material before it: DGZ16 at [72]. There is nothing in the Migration Act that requires, in every case where the Authority proposes to depart from the findings of the delegate, the Authority to put the applicant on notice of its proposed findings and to invite the applicant to comment. As Snaden J (with whom O’Callaghan J agreed) said in BJO18 at [174] and [176]:
174.I do not consider that the impugned failure here was any of those things. The IAA was obliged to consider the appellant’s application for a protection visa afresh and come to its own view as to whether or not the delegate’s decision should be affirmed on its merits. If it felt that the material required factual findings or conclusions that differed from those made at first instance, it was obliged to give them voice. It was under no statutory obligation to give the appellant notice that it was inclined to overturn any issue that the delegate decided in his favour; nor to get, request or accept any new information (whether at the appellant’s request or otherwise). It was obliged to discharge its function in a manner consistent with the statutory objective of providing a mechanism of limited review that (amongst other things) was efficient and quick: the Act, s 473FA(1).
…
176.There will, of course, be cases where the IAA does have to at least consider whether it should exercise the discretion to get new information for which s 473DC of the Act provides; and where its failure to do so might vitiate its review for reasons of legal unreasonableness. DPI17 is a good example. But such a requirement does not arise merely because the IAA is minded to form a view about an issue that diverges from what the delegate decided.
The assessment of whether the Authority acted unreasonably in failing to exercise, or to consider the exercise of, its discretion in s 473DC of the Migration Act in any given case will necessarily turn on the particular facts of the case.
There is no material dispute between the parties in relation to the principles summarised above and those principles are also relevant to the resolution of grounds 3 and 4 below.
On the application of those principles in the present case, I have formed the view that it was not unreasonable for the Authority not to exercise, or consider exercising, its discretion in s 473DC of the Migration Act to invite the applicant to provide new information before rejecting his claim to have been visited by the CID in June 2012. As submitted by the Minister, the Authority did not need any new information to assess this claim. It had all the relevant information before it and simply reached a different view to the delegate on the basis of that information. The Authority’s finding was based on the inconsistency identified by the Authority between the information given by the applicant in his entry interview and the information in his subsequent written statement, as well as on its other findings regarding the lack of any relevant profile that the applicant had with the Sri Lankan authorities. It was open to the Authority to proceed in this way, without inviting the applicant to comment.
In relation to the matters raised by the applicant explaining why it was unreasonable for the Authority not to exercise its discretion in s 437DC, I make the following observations.
First, that the delegate accepted the claim and that the Authority intended to reject the claim for a reason not evident from the delegate’s decision are not reasons that, of themselves, made it unreasonable for the Authority not to exercise the discretion in s 473DC. To find otherwise would amount to finding that, in virtually every case where the Authority intends to depart from the delegate’s reasoning in a way that is adverse to the applicant, the Authority would be required to exercise the discretion in s 473DC to get new information from the applicant. This is inconsistent with the scheme established under Part 7AA of the Migration Act and with authorities such as DGZ16 and BJO18.
Second, that the Authority intended to depart from multiple findings by the delegate does not, in the circumstances of this case, make it unreasonable for the Authority not to exercise its discretion to invite the applicant to comment in relation to any or all of those proposed findings. While I have, in this judgment, individually addressed each of the allegations of unreasonable failure to exercise the discretion in s 473DC, I have also considered the matters cumulatively. In the circumstances of this case, I do not consider that there is any basis to find that the Authority’s intention to depart from three of the delegate’s findings, in a way that is adverse to the applicant, required the Authority acting reasonably to exercise the discretion in circumstances where it otherwise had before it all relevant information to assess the applicant’s claims and was not addressing any new issue or faced with any relevant informational gap in the material before it.
Third, in assessing unreasonableness, I do not place any weight one way or the other on the fact that the applicant had a representative who provided thoughtful submissions to the Authority. It is more relevant, in my view, at least in the circumstances of the present case, to focus on matters such as the nature of the information before the Authority and whether the Authority had all necessary information to assess the applicant’s claims, including considering whether there was any new issue unknown to the applicant that the applicant might be able to, but had not had a reasonable opportunity to, comment on and whether there was any relevant informational gap in the information between the delegate and the Authority.
Conclusion on ground 2
None of the matters raised by the applicant in relation to ground 2 establish jurisdictional error.
GROUND 3
By ground 3, the applicant asserts that the Authority acted unreasonably by rejecting his claim that he was taken for interrogation by army officers for a few hours in early 2012 and mistreated without giving him the opportunity to comment through the exercise of its power under s 473DC of the Migration Act, in circumstances where the delegate accepted the applicant’s claim.
The relevant findings of the delegate and the Authority
The applicant claimed that in early August 2012, he was taken by four uniformed SLA officers from his house to an army camp, where he was told to make a confession, and shouted at and physically mistreated. He later learned that his sister-in-law had called the TNA candidate that the applicant was assisting and that the candidate arranged for his release and sent two of his close supporters to collect the applicant.
The delegate said in the decision under s 65 of the Migration Act, after summarising the applicant’s relevant evidence:
Due to the clarity and spontaneity of the applicant’s recall I accept that he was detained by SLA personnel and physically mistreated in August 2012.
The Authority said at [37] of its reasons:
I have considerable doubt that the applicant was ever taken by army officers for interrogation and was mistreated as he has claimed. I consider that the events of securing the applicant’s release from the army camp and visiting him while he was injured are so proximate in time to the invitation for the applicant to be a polling agent, it is improbable that reference would not have been made in [the candidate’s] letter to the applicant’s role as a polling agent and no mention of his interrogation or mistreatment by army officers. I also do not consider the applicant’s explanation for why he would agree to be a polling agent, given his claimed very recent and traumatic experience with the army, to be at all convincing. I note that following his experience where his campaigning van had been stopped by unknown men and leaflets burned, he made the decision to cease campaigning village to village. For these reasons and given he did not otherwise hold a profile with the authority to his LTTE involvement, I do not accept that the applicant was taken by four uniformed army officers by jeep to the local camp and interrogated and mistreated for approximately four hours before being released on the intervention of [the candidate].
The parties’ submissions in relation to the alleged error
The applicant submitted that in circumstances where the Minister’s delegate accepted this integer of the applicant’s claims and the Authority was considering rejecting the integer, the Authority unreasonably failed to exercise its power in s 473DC of the Migration Act to invite the applicant to provide information in response to the Authority’s concerns before making a finding on this issue.
The applicant submitted that the facts relevant to the assessment of unreasonableness in the present case include that the Minister’s delegate, after questioning the applicant, was impressed by the clarity and spontaneity of the applicant’s recall and the delegate was in a better position than the Authority to assess the veracity of the applicant’s claims based on the manner in which he presented his claims at the interview, and that the Authority was also considering rejecting the claims discussed in grounds 2 and 4. The applicant acknowledged that the Authority’s reasons are also relevant and conceded that it was open to the Authority to rely on at least some of the reasons for the finding, but submitted that it remained the case that the delegate was impressed by the clarity and spontaneity of the applicant’s recall. Counsel for the applicant submitted that the reviewer who has not had the opportunity to see the applicant should be cautious before making an unfavourable finding without exercising the power under s 473DC of the Migration Act.
The Minister submitted that it was not unreasonable for the Authority not to get, or consider getting, more information from the applicant about his claims to have been interrogated in August 2012 simply because it found on the review material that claim not to be persuasive. That was quintessentially the Authority’s function. The Minister submitted that there is no suggestion that the Authority’s rejection of the claims at [37] was based on it operating under a relevant informational gap by reference to the delegate: see ABT17. The Authority did not reject the applicant’s claims based on its own assessment of the applicant’s demeanour at the protection visa interview.
Counsel for the Minister submitted that the Authority had listened to the audio recordings of both the entry and protection visa interviews, as can be seen from [14] of its reasons, where the Authority stated it had listened to the audio recordings and noted that the applicant appeared to engage well in responding to questions put to him appeared to provide detailed and specific information. Counsel for the Minister submitted that the Authority should be taken to be cognisant of the delegate’s positive findings about the applicant’s demeanour in giving answers, which formed part of the review material.
Did the Authority unreasonably fail to exercise its discretion in s 473DC of the Migration Act?
In my view, the Authority did not act unreasonably in failing to exercise, or consider the exercise of, its discretion in s 473DC of the Migration Act to invite the applicant to provide new information before rejecting his claim to have been detained and mistreated by SLA officers in August 2012.
Much of the consideration of the corresponding part of ground 2 is relevant to the assessment of the error alleged in ground 3.
A further matter relied on by the applicant in asserting unreasonableness in ground 3 is that the delegate was impressed by the clarity and spontaneity of the applicant’s recall about the relevant event and the delegate was in a better position than the Authority to assess evidence given at the protection visa interview.
In considering these matters, it is also necessary to have regard to the Authority’s reasons for reaching a different view to the delegate on this claim. As can be seen from [37] of the Authority’s reasons, the Authority rejected the claim based on:
(a)the improbability of other matters that occurred at around the same time being mentioned in a letter from the TNA candidate who the applicant was assisting, but this incident not been mentioned at all, despite the applicant’s claim that it was the candidate’s intervention that led to his release;
(b)the Authority’s view that the applicant’s explanation for why he would agree to be a polling agent after this claimed traumatic experience to be unconvincing; and
(c)that the applicant did not otherwise hold a profile with the authorities for LTTE involvement.
While it may be true that the delegate had advantages in assessing the evidence given at the protection visa interview that the Authority did not have, this is not a case where the Authority’s rejection of the applicant’s claim was based on its assessment of the manner in which he presented his evidence to the delegate. I accept the Minister’s submission that the Authority did not, in making its finding at [37], rely on its own impression of the applicant’s demeanour at the protection visa interview. I also accept the Minister’s submission that there is no relevant informational gap between the information available to the Authority and that available to the delegate. The matter is therefore distinguishable from ABT17. I also accept that the delegate’s impressions of the manner in which the applicant gave his evidence, which were recorded in the delegate’s reasons, were available to the Authority as part of the review materials.
The Authority made its decision based on the same material that was available to the delegate and was not in any way disabled from performing its statutory task by not getting new information from the applicant. The Authority simply reached a different view to the delegate of the applicant’s claims based on the content of the material before it.
Conclusion on ground 3
Ground 3 is not established.
GROUND 4
By ground 4, the applicant asserts that the Authority acted unreasonably by not accepting his claim that he received threatening phone calls from unidentified callers while in hiding in September 2012 without first giving him the opportunity to comment through the exercise of its power in s 473DC of the Migration Act, in circumstances where the delegate accepted the claim relying in part on the applicant’s consistency on this point.
The relevant findings of the delegate and the Authority
The applicant claimed that after the election victory for the TNA in 2012, he received several threatening telephone calls from unknown men on his mobile and was told that they would kill him because he had supported the TNA and a particular candidate.
The delegate said in the decision made under s 65 of the Migration Act:
The applicant was asked about the threatening phone calls he received after the election. He responded that he was threatened about the support he had given the TNA, and told that ‘wherever you are hiding we will find you and kill you.’ He had subsequently gone into hiding. Due to the applicant’s consistency on this point I find that he also received threats from persons opposed to his TNA involvement after the September 2012 election.
The Authority said at [41] of its reasons:
The applicant claimed that while he was in hiding, he received threatening phone calls from unidentified callers who stated that, as the applicant had supported [the candidate] who was successful in the election wherever he was hiding out, they would come and kill him. Given my finding that the applicant’s role in supporting [the candidate’s] election campaign was low-profile and administrative in character, and that despite having an altercation with a group of men at the polling booth on the day of the election who he did not previously know, he was able to leave peacefully and without further incident, it follows that I do not accept the applicant received threatening telephone calls in the days after the election outcome from unidentified people threatening to kill him. I note that letters provided by the applicant from [the candidate and two other persons] refer to the applicant having been threatened by unknown men. In all three letters the assertion that the applicant has received threats from unknown persons is based on reports by the applicant or his sister-in-law rather than a personal account and I have considered the weight of the letters on this basis.
The parties’ submissions in relation to the alleged error
The applicant submitted that, in circumstances where the Minister’s delegate accepted this integer of the applicant’s claims and the Authority was considering rejecting the integer, the Authority unreasonably failed to exercise its power under s 473DC of the Migration Act to invite the applicant to comment before making a finding on this issue.
The applicant submitted that the specific facts relevant to the assessment of unreasonableness in this case include that that the Minister’s delegate, after questioning the applicant, was impressed by the applicant’s consistency on the point, and the delegate was in a better position than the Authority to assess the veracity of the applicant’s claims based on the manner in which the applicant presented his evidence during the interview, and the Authority was also considering rejecting the applicant’s claims discussed in grounds 2 and 3 above. The applicant accepted that it was open to the Authority to rely on the reasons it gave for the finding, but submitted that this was not determinative.
The Minister submitted that the trigger for the exercise of s 473DC of the Migration Act is not simply that the Authority arrived at a different view of the facts from the delegate. That the delegate was impressed with the applicant’s consistency is neither here nor there and the delegate’s impressions of the manner in which the applicant presented his claims at the interview were disclosed in the delegate’s reasons forming part of the review material before the Authority. The Minister submitted that the Authority had other reasons for rejecting the claim and these findings were open to the Authority.
Did the Authority unreasonably fail to exercise its discretion in s 473DC of the Migration Act?
Again, much of the reasoning that I have given above in rejecting similar assertions of error in grounds 2 and 3 is relevant to the assessment of this ground.
I again accept the Minister’s submission that the Authority reaching a different conclusion to the delegate is not enough to make it unreasonable for the Authority not to exercise its discretion in s 473DC of the Migration Act. I further accept the Minister’s submission to the effect that the delegate being impressed by the applicant’s consistency on this point is not determinative. The Authority did not base its decision on any inconsistency in the applicant’s evidence, or its own assessment of the manner in which he gave that evidence. Rather, the Authority’s finding followed from other findings it made based on the material before it, including the low-profile and administrative character of the assistance the applicant provided the TNA candidate and that, despite an altercation with a group of men at the polling booth on election day, he was able to leave the polling booth peacefully without further incident. It was open to the Authority to rely on these matters in reaching its finding and it did not need additional information from the applicant to reasonably reach these findings.
This is another example of the Authority considering the same review materials that were available to the delegate and reaching a different view of the facts to the delegate. Again, the Authority’s finding was based on the content of the information rather than the manner in which the applicant presented his evidence at the protection visa interview.
The Authority did not act unreasonably in failing to exercise, or consider exercising, its discretion in s 473DC of the Migration Act to invite the applicant to provide new information before rejecting his claim to have received threatening phone calls from unidentified callers following the 2012 election.
Conclusion on ground 4
Ground 4 is not established.
CONCLUSION
Given I have found that the applicant has not established that the Authority decision is affected by jurisdictional error, the judicial review application to this Court must be dismissed.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 17 October 2024
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