FHL18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 590
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FHL18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 590
File number: ADG 406 of 2018 Judgment of: JUDGE YOUNG Date of judgment: 6 July 2023 Catchwords: MIGRATION LAW – application for review of a decision of the IAA to affirm a decision of the Minister’s delegate to refuse the applicant a SHEV – where the applicant is a citizen of Sri Lanka – where the applicant is of Tamil ethnicity – where the applicant’s family had connections to the LTTE – where the applicant claimed to have gone into hiding before leaving Sri Lanka – where the applicant claimed to have a well-founded fear of persecution on the ground of being subjected to sexual violence – where the Authority found that the applicant did not face a real change of serious harm from sexualised violence – the court is satisfied there was jurisdictional error – the decision is quashed. Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 6 June 2023 Place: Darwin Counsel for the Applicant: Mr Blewett Counsel Assisting for the Applicant: Ms Sibree Solicitor for the Applicant: SMB Workplace & Employment Law Counsel for the Respondent: Ms Scanlon Solicitor for the Respondent: Australian Government Solicitor
Table of Corrections 11 July 2023 An order has been added at Order 4 correcting the name of the First Respondent. ORDERS
ADG 406 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FHL18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
6 july 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 7 September 2018.
2.A writ of mandamus issue directed to the Second Respondent requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 3 August 2018.
3.The First Respondent is to pay the costs of the Applicant fixed in the sum of $7,853.
4.The First Respondent’s name be amended to the Minister for Immigration, Citizenship Multicultural Affairs.
THE COURT NOTES THAT:
A.These orders have been amended pursuant to rule 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
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
This is an application for judicial review of a decision of the Immigration Assessment Authority (Authority) made on 7 September 2018 affirming a decision of the Minister’s delegate made on 3 August 2018 to refuse to grant a Safe Haven Enterprise visa (SHEV). The delegate and the Authority were not satisfied that the applicant faced a real chance of serious harm or a real risk of significant harm if she were to return to Sri Lanka.
The applicant arrived in Australia from Sri Lanka in June 2013 and lodged an application for a Safe Haven Enterprise visa (SHEV) in July 2016.
The applicant’s claims in her written SHEV statement were summarised by the Authority as follows:
·she is a Tamil female from the Northern Province, Sri Lanka;
·she grew up in an area once controlled by the Liberation Tigers of Tamil Eelam (LTTE);
·the applicant’s father went missing in 1996, presumably killed by members of the Sri Lankan Navy (SLN). He was a supporter and transporter of food for the LTTE;
·following her father’s disappearance members of the Sri Lankan Army (SLA), the Criminal Investigation Department (CID) and the Eelam People’s Democratic Party came to her home and questioned her mother;
·between 2006 and 2009 the applicant’s family was displaced as a result of the civil war;
·the applicant’s maternal cousin was a member of the LTTE Sea Tiger Unit. He lived near the applicant and visited her family home when they lived in the LTTE controlled area;
·the applicant’s mother’s cousin was also in the LTTE Sea Tigers;
·in 2009 the applicant and her family fled the LTTE controlled area and were subsequently detained in the Kathaidy army camp for six months;
·while in detention the applicant was interrogated twice a week and threatened with harm if she did not tell the truth;
·in October 2009 the applicant’s family were released from the Kathaidy army camp;
·after returning to her home village in September 2010 the applicant was questioned several times by the SLA and CID;
·on 10 November 2012 the applicant was taken to the CID office and interrogated for three hours. Her national identity card was taken and not returned. On release she was told she was required to report to the CID office when requested;
·the CID stopped the applicant on the street several times while she travelled to and from work;
·in March 2013 the CID searched for the applicant but she was not at home. Her mother was told that the applicant needed to report to the CID office;
·the applicant was afraid to remain and so departed Sri Lanka by boat for Australia;
·if she returns to Sri Lanka the applicant fears she will be detained and seriously harmed by the CID and SLA on account of:
·her profile as a “young Tamil female” previously detained at the Kathaidy army camp;
·her residence in an area previously controlled by the LTTE;
·her imputed LTTE membership due to her place of residence and familial LTTE links;
·her national identity card being in the possession of the CID;
·her profile as an unmarried woman without male support;
·her illegal departure from Sri Lanka; and
·her asylum application abroad.
In February 2018 the applicant was interviewed by a delegate (SHEV interview) when she gave additional information or made further claims:
·the applicant’s mother’s cousin held a high-rank in the LTTE Sea Tigers;
·when she was released by the CID on 10 November 2012 she was asked to report again on 22 November 2012;
·while the applicant was in hiding the Sri Lanka authorities harassed her sister to find her whereabouts;
·the SLA continued to search for the applicant after she left Sri Lanka, the last search being in 2014;
·the applicant’s mother’s cousin returned to Sri Lanka from India in 2017, was arrested by the CID and is now in prison.
The Authority accepted that the applicant’s father was a fisherman, was an LTTE supporter and had transported food for the LTTE. The Authority also accepted that the applicant’s father may have been arrested and killed by the SLN. The Authority accepted that the applicant and her family had been displaced by the war between 2006 and 2007. The Authority accepted that the applicant had two relatives who were members of the LTTE Sea Tigers but did not appear to accept that one of them held a “high rank”.
The Authority did not accept that the applicant was detained and interrogated in an army camp because of suspected LTTE links but rather was satisfied that the applicant and her family resided within an internally displaced persons camp. The Authority concluded that if the applicant and her family were suspected of links to the LTTE or were of adverse interest to the authorities they would not have been released.
The Authority accepted the applicant’s claims that after she and her family returned to their home area the Sri Lankan authorities questioned them from time to time. The Authority did not appear to accept that the applicant became a person of adverse interest to the Sri Lankan authorities from November 2012 or that she was living in hiding prior to her departure from Sri Lanka. The Authority concluded that there were a number of inconsistencies in her evidence, particularly between her SHEV statement and her SHEV interview, that undermined the credibility of these claims.
In her SHEV statement she said she had been detained by the CID on 10 November 2012 and interrogated for three hours. She said she was then released and told that, if required, she would need to report again. Her national identity card was not returned to her. She claimed that her mother was approached by the CID in March 2013 and told that the applicant must report to the CID. The applicant said she “did not return home for a few days and thereafter until [she] departed [she] did not stay at home all the time”.
In her SHEV interview the applicant said that after being released by the CID on 10 November 2012 she was told to report again “for detention” on 22 November 2012 but instead she went into hiding at her mother’s friend’s house and at other places until she left Sri Lanka in May 2013. The Authority also referred to the delegate having asked the applicant whether her sisters had been called to go into detention and that the applicant replied that they were under 16 years and there was no problem for them. However, the Authority pointed out that the applicant sisters were aged 20 and 18 at that time.
The Authority expressed “concerns” about the applicant’s evidence but accepted that she was taken for questioning by the CID on 10 November 2012 about familial LTTE links. The Authority also accepted that the CID retained her national identity card and that she was asked to report again on 22 November 2012 and she failed to do so. However, the Authority did not accept that she was asked to report “for detention” on 22 November 2012 as she claimed in the SHEV interview. The Authority concluded that if the authorities meant to detain her she would not have been released from CID custody on 10 November 2012.
In an apparent reference to claims made by the applicant in her SHEV interview, the Authority did not accept that the applicant had lived in hiding at various locations from 22 November 2012 until May 2013 when she left Sri Lanka. The Authority did not accept that the Sri Lankan authorities harassed her sister or that they had pursued the applicant after she left Sri Lanka. The Authority did not accept the applicant’s claims that her relative held a high rank in the LTTE or that he was held in Boosa jail in connection with his prior LTTE involvement.
The Authority accepted that the applicant was a person of interest to the CID in November 2012 because of her familial LTTE links but was not satisfied that she faced a real chance of harm for that reason, or any other reason, should she return to Sri Lanka. The Authority referred to country information from the UK Home Office that assessed that international protection was not warranted in cases where a person was a member of or connected to the LTTE in the past unless they had a significant role or were, or perceived to be, active in post-conflict Tamil separatism. The Authority also referred to Department of Foreign Affairs and Trade (DFAT) country information that indicated that certain “high-profile” individuals with links to the LTTE who committed acts of violence or provided weapons explosives to the LTTE would continue to be of interest to the Sri Lankan authorities. The Authority was not satisfied that the applicant fell into any of these categories and was not satisfied that the applicant would come to the adverse attention of the Sri Lankan authorities were she to return to Sri Lanka.
The Authority referred to country information that indicated that the overall situation for Tamils in Sri Lanka had improved since the end of the civil war in 2009 and that Tamil political parties operated openly and Tamils were not systematically targeted or subjected to serious harm because of their race.
The Authority also considered the applicant’s claim to fear harm because she was a “young Tamil female” who was previously at Kathaidy army camp and because of her status as an unmarried woman without male support. The Authority accepted that women in Sri Lanka may be vulnerable and that harassment, rape and other forms of sexualised violence were acknowledged as serious social problems, particularly in areas affected by the conflict. The Authority implicitly accepted that the applicant’s home area was such a place. The Authority referred to country information about measures taken by the Sri Lankan government to address sexual and gender-based violence and sexual harassment claims. It referred to a decrease in the incidence of sexual assault by members of the Sri Lankan military as it withdrew from the north and east of the country and a DFAT assessment that all Sri Lankan citizens have access to redress through the police, judiciary and Human Rights Commission regardless of religion or ethnicity, although language issues could be an effective barrier to policing issues and there is a lack of female police officers.
The Authority said, at paragraph [32] of its reasons, that it placed “weight on DFAT’s assessment that women in Sri Lanka face a high risk of societal discrimination and violence; this risk, however, particularly relates to domestic or intimate partner violence which the applicant has not claimed”. The Authority accepted that there were risks facing single women or all-female households in Sri Lanka but it noted that the applicant had not claimed that she or her family had faced sexual harassment previously in Sri Lanka. The Authority also noted the applicant’s evidence that a maternal uncle resided in Jaffna. The Authority was not satisfied, “having regard to the applicant’s particular circumstances”, that she faced a real chance of being sexually harassed by the Sri Lankan authorities, or otherwise faced a real chance of harm due to being a “young Tamil female”, as a person who was previously at the Kathaidy army camp, due to her marital status, due to lack of male support or a combination of these factors.
The Authority also considered the applicant’s other claims relating to her illegal departure from Sri Lanka and as a returning asylum seeker and her related claims to complementary protection. The Authority was not satisfied that the applicant faced a real chance of harm, was a refugee or was entitled to complementary protection.
GROUNDS OF REVIEW
The applicant’s amended grounds of review are as follows:
(1)The reviewer erred at [32] in finding that the Applicant did not have a well-founded fear of persecution on the ground of a fear of being subjected to sexual violence, in that the finding was unreasonable.
(2)The reviewer erred at [32] in failing to take into account the most recent country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) in relation to the Applicant’s risk of sexual violence, contrary to s. 499 of the Migration Act 1958 (Cth) and Ministerial Direction No 56; and in the alternative had regard to an irrelevant consideration.
(3)The reviewer erred at [21] in misconstruing the Applicant’s claim that she had lived in hiding from 22 November 2022 until May 2013, and failing to consider the Applicant’s actual claim as to being in hiding as a matter evidencing her fear of persecution.
CONSIDERATION
Ground one
The applicant submitted that the finding that the applicant did not face a real chance of serious harm, from sexual harassment or other forms of sexualised violence, by reason of the fact that she was a young Tamil woman, unmarried and without male support, was legally unreasonable. It was submitted that the finding lacked an evident and intelligible basis, the reasoning process could not be identified or was arbitrary or capricious: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] (French CJ), [76] (Hayne, Keifel and Bell JJ), and [105] (Gageler J).
The applicant submitted that the reasons given by the Authority for that conclusion were as follows:
(1)the high risk of societal discrimination and violence faced by women particularly relates to domestic or intimate partner violence, and the applicant had not claimed domestic or intimate partner violence;
(2)the applicant had not claimed that she or her family had faced sexual harassment previously in Sri Lanka; and
(3)the applicant had a maternal uncle residing in Jaffna.
The applicant submitted that, in the context of reliable country information: the DFAT 2017 and 2018 country reports, that women throughout Sri Lanka faced a high (2017 report) or moderate (2018 report) risk of societal discrimination or violence, with (according to the 2018 report) a higher prevalence of sexual violence in the north and east of the country due to the militarisation of those areas, that the factors identified by the Authority could not logically support its conclusion.
The Minister submitted that the crux of the applicant’s argument was that the Authority reached a conclusion contrary to aspects of the evidence before it. The Minister submitted that the Authority accepted a number of factors in the applicant’s favour based on country information:
(1)that sexual harassment and violence towards women were social problems in Sri Lanka;
(2)that single women were particularly vulnerable;
(3)that these issues were acute in northern Sri Lanka (from where the applicant came); and
(4)there was a high risk of societal discrimination and violence against women in Sri Lanka.
The Minister submitted that the Authority placed greater weight, however, on a number of other factors (the same factors identified in the applicant’s submissions) in the applicant’s particular circumstances:
(1)the applicant did not claim to be at risk of domestic or intimate partner violence, which was a particular high risk factor on the country information;
(2)the applicant did not claim that either she or her family had faced sexual harassment previously in Sri Lanka; and
(3)the applicant had a maternal uncle residing in Jaffna.
The Minister submitted that these factors were plainly relevant to the question of whether the applicant feared harm due to being an unmarried female without male support in northern Sri Lanka. The Minister submitted that in considering these matters the Authority engaged in weighing and assessing evidence as a fundamental part of its fact-finding function, which is generally not a matter for judicial review: NAHI v Minister for Immigration and Indigenous Affairs [2004] FCA FC 10 at [11]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281 – 282. The decision therefore fell within the bounds of the Authority’s decisional freedom: Li at [30] (French CJ).
The Authority accepted that the applicant was a single Tamil woman, without male support, from northern Sri Lanka. The Authority referred, without criticism or qualification, to DFAT 2017 and 2018 country reports for Sri Lanka. The 2017 report said, under a section headed “Conditions for women in the north and east”, that there were approximately 90,000 female-headed households in the north and east. According to the report these women face challenges including a lack of physical security for their family, a lack of permanent housing and economic opportunities and difficulties accessing health services. The report referred to allegations of sexual assaults and rape attributed to the Sri Lankan military and the fact that some women may also been forced into prostitution as an economic necessity. In a separate paragraph the report also referred to the difficulty women face from domestic violence. The section of the report concluded, in a sentence to which the Authority referred, that:
Overall, DFAT assesses that women throughout all of Sri Lanka face a high risk of societal discrimination and violence, particularly domestic or intimate partner violence and there are few support mechanisms available to women in these circumstances.
The 2018 report, under the heading “Women”, observed that the majority of cases of gender based violence in Sri Lanka are likely to go unreported due to inadequate legislation, women’s limited access to justice including fear of reprisals, limited trust in the police and judiciary, delays in the investigation of cases and very low conviction rates. It said few cases of gender-based crimes involving a member of the security forces resulted in convictions. The section concluded:
DFAT assesses that women throughout Sri Lanka, including in the north and east (see below) face a moderate risk of societal discrimination, including violence, and that few support mechanisms are available to women in these circumstances.
In the section headed “Conditions for women in the north and east” the 2018 report said:
3.90 International and local observers attribute the higher prevalence of sexual violence and domestic abuse in the north and east compared to other parts of Sri Lanka to the conflict and militarisation in these regions… In 2017, the UN Special Rapporteur on minority issues reported a decrease in the incidence of sexual assault by the military as it drew down in the north and east, but Tamil women continue to fear sexual assault in locations where the military presence remains.
3.91 In 2017, the Foreign Correspondents Association of Sri Lanka quoted former president Chandrika Bandaranaike Kumaratunga as saying that Tamil women continue to face sexual exploitation both by the military and Tamil officials, the latter allegedly demanding sexual favours to carry out routine paperwork. The International Crisis Group in 2017 cited reports from a number of women of routine sexual exploitation by state officials and military personnel.
3.92 The UN Special Rapporteur on minority issues raised concerns in 2017 about reports that women in the north were experiencing harassment and sexual violence while employed by the Civil Security Department (CSD). Of the 3,000 CSD employees in Mullaitivu and Kilinochchi in 2016, more than two thirds were female and most were former LTTE members or women from female-headed households. Many female employees were required to work on farms in isolated locations under the direct management of military personnel…
It may be readily conceded that the weight to be given to country information is a matter for the Authority and, further, general country information may not address the particular circumstances of an applicant. However, ordinarily the matters taken into account by the decision-maker in assessing or, in some cases, discounting the weight to be given to particular country information or in distinguishing the particular circumstances of an applicant from general country information should be disclosed in the decision-maker’s reasons, either expressly or by necessary implication.
In assessing the applicant’s claims the Authority pointed to various measures, referred to in the DFAT 2018 report, taken in Sri Lanka to address sexual and gender-based violence. These included designated provincial senior female law-enforcement officers to respond to sexual harassment claims and an expressed commitment by President Sirisena to taking action to prevent the abuse of women and children, including speeding up trial processes for these offences.
However, as both the applicant and the Minister submitted, the primary factors identified by the Authority in reaching its conclusion that the applicant did not face a real chance of serious harm, from sexual harassment or other forms of sexualised violence, were that (1) she did not claim to be at risk of domestic or intimate partner violence, (2) she did not claim that either she or her family had faced sexual harassment previously in Sri Lanka; and (3) she had a maternal uncle residing in Jaffna.
In relation to the first factor, it is true that the applicant did not claim to be at risk of domestic or intimate partner violence. However, domestic or intimate partner violence was only one part of the risk of gender-based violence faced by women, particularly in northern and eastern Sri Lanka, according to the DFAT reports. Both reports referred to the particular risk of harm faced by single women or female-headed households and the risk of sexual assault and rape by members of the Sri Lankan military. The factor identified by the Authority: the absence of any claim by the applicant of domestic or intimate partner violence, is not responsive to the existence or otherwise of these risks and not relevant to an assessment of whether the applicant faced such risks.
The second factor, that the applicant did not claim that either she or her family had faced sexual harassment previously, is ambiguous. If there is a concrete reason she or her family had not faced sexual harassment previously, for example, that she and her family did not live in an area with a military presence, and were not likely to do so in future, then the absence of past sexual harassment may be relevant to the assessment of the chance of sexual harassment or violence in future. However, in the absence of evidence of such a concrete reason, the explanation may be simply the workings of chance. If so, the absence of past sexual harassment is not relevant to the assessment of the chance of future sexual harassment or violence and, accordingly, the Authority’s reasons do not permit an assessment of the relevance of this factor to the chance of the applicant suffering relevant serious harm.
It is difficult to assess the relevance of the last factor, the residence of a maternal uncle in Jaffna. It may, as the Minister submits, be highly relevant to the question of whether the applicant would find herself as a single female or a member of a female-headed household were she to return to Sri Lanka and, in turn, relevant to assessing her chance of suffering relevant serious harm. The Authority noted the applicant’s claim that her home area was Vathirayan North, which may be presumed to be a location in northern Sri Lanka. The applicant’s maternal uncle was said by the Authority to live in Jaffna which, in context, appears to refer to the city of Jaffna, another place. If the applicant were to avail herself of the protection and support of her maternal uncle it may be necessary that she relocate, alone or with her family, to Jaffna. It is unclear whether such a relocation would be practicable or reasonable. In my opinion, without further information about these matters it is impossible to know whether the fact that the applicant’s maternal uncle lives in Jaffna is relevant to assessing her chance of suffering relevant serious harm.
In my view, the factors identified and described by the Authority do not permit the steps in the Authority’s reasoning process on this point to be identified so as to be satisfied that its conclusion is justified, transparent and intelligible: Li at [105]. Accordingly, I agree that the Authority’s conclusion on this point lacks an evident and intelligible basis. I am satisfied the error is material.
GROUND TWO
Ground two asserts that the Authority committed jurisdictional error by breaching s. 499(2A) of the Migration Act (the Act) which requires the Authority to comply with a ministerial direction made under s. 499 (1) of the Act. Ministerial Direction No 56 of 21 June 2013 required the Authority to take into account country information prepared by DFAT. The direction relevantly provided:
Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision-maker, the decision-maker must take into account that assessment, where relevant, in making their decision. The decision-maker is not precluded from considering other relevant information about the country.
A DFAT report on Sri Lanka published on 23 May 2018 (the 2018 report) replaced an earlier report published on 24 January 2017 (the 2017 report). The Authority referred to both reports in its reasons. The applicant criticises the Authority for taking into account the 2017 report and, in particular, for its reliance on the sentence taken from the 2017 report reproduced at paragraph 24 above relating to the high risk of “… societal discrimination and violence, particularly domestic or intimate partner violence…”. It was submitted that the reference to domestic or intimate partner violence was irrelevant to the applicant and that the Authority was required, instead, to refer to the 2018 report, particularly the passage from the 2018 report reproduced at paragraph 25 above and, in failing to do so, the Authority failed to comply with the ministerial direction by taking into account the 2018 report “… where relevant…”.
In my view this criticism is unjustified. Although this passage from the 2018 report did not expressly refer to domestic or intimate partner violence it is clear from the rest of the 2018 report that the assessment of the risks to women in Sri Lanka from violence included both domestic and intimate partner violence and other forms of violence. The 2017 and 2018 reports were not substantially different on this point. Although there were some differences in language those differences were relatively minor and not of substance. This is not a case where the information in the 2017 report is “critically different” or contradictory to the information in the 2018 report: BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 at [35] – [36] (O’Callaghan J). I reject the assertion implicit in the applicant’s submission that if the Authority had taken into account only the 2018 report then the question of whether the applicant was at risk of domestic violence would have been irrelevant. The question of whether the applicant was at risk from domestic or intimate partner violence was irrelevant not because of any change in the general country assessments between the 2017 and 2018 reports but for another reason: there was no claim or evidence of it on the part of this particular applicant.
This ground is dismissed.
GROUND THREE
Ground three alleges that the Authority misunderstood the applicant's claim in relation to her claim of going into hiding to avoid the CID which had summoned her for an interview on 10 November 2012. She said that at interview she was told to report back to CID on 22 November 2012. The Authority understood the applicant to have claimed to have then gone into hiding because of her fear that persons who had been summoned to appear at the CID office on 22 November 2012 had disappeared and that she had gone into hiding and remained in hiding until she boarded a boat to come to Australia in May 2013.
The applicant submitted that the Authority misunderstood her claims in relation to this and consequently made an adverse credibility finding against her. It is correct that the Authority found that the claim was untruthful because it concluded there was evidence that the applicant had been employed in January, February and March 2013 by an international aid organisation and had not been in hiding. The Authority concluded from this that the applicant lacked credibility in her claims to have a well-founded fear of persecution because of a real or imputed political opinion in support of the LTTE or Tamil separatism.
The applicant submitted that she in fact said that she had been in hiding for one and a half months before her departure in May 2013 and therefore there was no inconsistency between her employment in January, February and March 2013 and a period of one and a half months in hiding before her departure in May 2013.
The applicant provided extracts of three interviews conducted on 15 June 2013, 8 July 2013 and 29 July 2013, soon after her arrival in Australia, and an extract from her SHEV interview conducted on 16 February 2018. In the 2013 interviews the applicant clearly said that she was employed in January, February and March 2013 and that the period in which she went into hiding was one half months before she left Australia in May 2013.
However, in her SHEV interview in 2018 she said she went into hiding after being summoned to the CID interview on 22 November 2012. There was no mention of in this interview of employment in January, February and March 2013. In my view, the plain meaning of what the applicant said was that such was her fear in relation to the 22 November 2012 interview, and her claim that women had disappeared, that she immediately went into hiding. In my view the Authority was correct to conclude that the two versions were inconsistent. The applicant submitted that her statements in the 2018 interview were consistent with her earlier statements. I do not accept that submission. In in my view, they are irreconcilable.
The Authority clearly considered the 2013 interviews and the 2018 interview and was aware of the inconsistency. The Authority was justified in considering the more serious claims of the applicant made in the 2018 interview and concluding that they were not credible when measured against her earlier claims. The Authority made no error in doing so.
I have found that there was jurisdictional error in relation to ground one. The decision will be quashed and remitted to the Authority. There will be an order for costs against the Minister in accordance with the amount in Schedule 2, Part 2, Division 1, item 3 of the Rules, for $7,853.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 6 July 2023
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