FQT17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1280
•26 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FQT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1280
File number(s): MLG 2801 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 26 November 2024 Catchwords: MIGRATION – Safe Have Enterprise visa – application for judicial review of decision of the then Immigration Assessment Authority – where Applicant made new claims of sexual assault that were not before the delegate and the Authority was not satisfied that the new information was credible personal information and did not consider it pursuant to s.473DD – whether the Authority materially erred in its application of the credibility test – whether the Authority ought to have exercised its discretion pursuant to s.473DC to invite the Applicant to an interview – whether the Authority failed to exercise its jurisdiction to determine if the Applicant met the criteria as a member of the same family unit of a non-citizen who met the criterion at s.36(2)(a) and/or (aa) – application allowed with costs. Legislation: Migration Act 1958 (Cth) ss. 5AAA, 36, 65, 473BA, 473DA, 473DB 473DC, 473DD, 473EA, 474, 476 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
Craig v South Australia [1995] HCA 58
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 530
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 13 August 2024 Place: Melbourne Counsel for the Applicant: Mr Hughan Solicitor for the Applicant: AUM Lawyers Counsel for the Respondents: Ms Cameron Solicitor for the Respondents: Australian Government Solicitor
Table of Corrections Paragraph 16 Formatting adjustment ORDERS
MLG 2801 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FQT17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
26 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the Second Respondent be amended in the title of the proceeding to Administrative Review Tribunal.
2.A writ of certiorari issue quashing the Immigration Assessment Authority decision made on 20 November 2017 in Case Number IAA17/02419.
3.A writ of mandamus issue requiring the Administrative Review Tribunal to reconsider and determine the Applicant’s application for review according to law.
4.The First Respondent pay the Applicant’s costs in an amount to be agreed.
5.Liberty to apply in relation to costs.
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 Mansini
IN SUMMARY
Before the Court is an application for review of an administrative decision to affirm an earlier decision to refuse the applicant a protection visa.
The applicant is a citizen of Sri Lanka who sought protection from Australia, together with her 4 children, initially as dependents to her husband with no particular claims of her own. The applicant and her children were refused a visa and, on review of that outcome, sought to introduce new information and new claims specific to the applicant.
The applicant now seeks judicial review of the further administrative decision to affirm the initial decision to refuse her a visa.
For the reasons that follow, jurisdictional error is established and the application is allowed with costs.
CONTEXT
The Applicant is a 53 year old citizen of Sri Lanka.
On or around 23 April 2013, the Applicant arrived in Australia with her 5 family members (together, the Applicants) as an unauthorised maritime arrival. The family will be referred to by pseudonym: the applicant FQT17 is the wife of FPR17 and they are mother and father of their children EUF18, EUG18, EUH18 and EUI18.
On 9 December 2016, FPR17 on behalf of his family applied for a combined safe haven enterprise (subclass 790) visa. In summary, FPR17 claimed to fear harm from unknown men demanding money from him and claims to fear threats to his family - and his wife FQT17 and their children sought to rely on the criterion at s.36(2)(b) of the Migration Act1958 (Cth) (the Act) as family members of the same unit.
On 5 April 2017, by 2 separate decisions of a delegate of the First Respondent, the primary applicant FPR17 (in the first decision) and the subject applicant FQT17 (in the second decision) and their children as dependents were refused protection visas.
On 11 April 2017, the delegate refusal decisions were referred to the then Immigration Assessment Authority (the Authority or the Second Respondent) for review.
On 31 May 2017, in the course of her application for review of the delegate’s decision, FQT17 provided a submission and a statutory declaration of FQT17 dated 30 May 2017 to the Authority. It was uncontroversial between the parties in these proceedings that the following extracts from her statutory declaration constituted new information that was not before the delegate:
[11] The men told me that they money issue is only concerning my husband, and they would like me to agree with something else they are asking for. I told them I would never agree to their requests, and then one of the men threatened me, bringing a sharp tool close to my eyes. I was so scared that I jumped to avoid it, and it hit my face, cutting me below my left eye. There is still a mark on my face as a result of this injury.
[12] The men in the room then held me down and started to torture me. I screamed but they did not stop. They removed my clothes and sexually assaulted me. They burned my thighs with a cigarette and verbally abused me. I continually screamed and tried to escape, but they continued to threaten me. They told me that if I don’t agree and comply with what they were doing to me, then they would go after my daughters, especially my oldest daughter.
…
[20] After this second time, I knew I couldn’t continue to face this treatment. When I got home I was so upset; I felt like I was so mentally hurt and upset I couldn’t continue. My mother was out when I got home, and my children were still out at school. I tried to commit suicide by hanging myself from the ceiling fan at home. My mother soon came home and found me. She pulled me down and I was taken to hospital, as I had problems breathing and sustained injuries to my throat and neck.
…
[28] I have never told anyone else what happened to me including my husband. I have never explained to him the reason behind the cigarette burns on my thighs and I have tried my best to keep them hidden from him. I think that my husband has noticed my poor mental state, and while I feel like I am recovering in Australia, it is still a very difficult situation for me to deal with what has happened to me in Sri Lanka. My husband thinks that my poor health is because of the harassment we received but he doesn’t know the full extent of my mistreatment.
Also on 31 May 2017, the Authority was provided with submissions and statutory declarations by 3 of FQT17’s children (EUG18, EUH18 and EUF18), sworn on 30 May 2017 and 31 May 2017 respectively, which purported to corroborate some of the new information provided by FQT17. In summary, the daughters gave evidence about their experiences and observations of their mother being unwell and of changes to her demeanour. One daughter gave evidence of her grandmother having informed her of FQT17’s attempted suicide which she did not disclose to other family members.
On 20 November 2017, by 3 separate decisions of the Authority, the decisions to refuse the Applicants protection visas were affirmed. It is the Authority’s decision in relation to FQT17 that is subject of these proceedings (the Reasons).
APPLICATION BEFORE THE COURT
On 21 December 2017, FQT17’s originating application for judicial review of the Authority’s decision along with a supporting affidavit were accepted for filing.
On 13 September 2018, a response was filed on behalf of the First Respondent which contended that the decision of the Authority was not affected by jurisdictional error.
Various procedural orders were then made.
On 5 August 2024, FQT17’s amended application and an outline of submissions in support were accepted for filing. The amended application identified 3 grounds of review in the following terms:
1.The decision of the Second Respondent (the IAA) not to exercise the discretion under s 473DC(3) of the Act to invite the Applicant for an interview to give new information was legally unreasonable.
Particulars
(a) On or about 12 December 2016 the Applicant’s husband (known as FPR17) applied for a protection visa. The Applicant was included in this application as a secondary applicant, by reason of her being a member of FPR17’s family unit.
(b) The Applicant provided a statutory declaration dated 7 December 2016, primarily in support of FPR17’s application, but referring also to incidents in which she was personally involved.
(c) On or about 3 April 2017 a delegate of the First Respondent (the Minister) interviewed the Applicant.
(d) On 5 April 2017 a delegate of the Minister refused the visa applications of FPR17, the Applicant and their four children.
(e) Despite the delegate’s decision to refuse the Applicant’s visa application the delegate found:
The applicant has been consistent in her version of events during her interactions with the department. This includes at her Arrival Interview, in her Protection visa Statement of Claims and at the Protection visa interview. Her interaction with the interviewing officer was spontaneous and she appeared to be recalling events from her personal experience.
(f) Following the referral of the applications to the IAA, on 31 May 2017, the Applicant gave the IAA new information, in which she claimed to have been sexually assaulted, including a statutory declaration made by herself and statutory declarations of her three daughters (EUF18, EUG18 & EUH18) in which they provided corroborative evidence of this claim.
(g) The Applicant claimed on the occasion that she was first sexually assaulted she had suffered cigarette burns on her thighs and a cut under her eye. Referring to the cut she stated, “[T]here is still a mark as a result of this injury”. Further she said that she had tried to keep the cigarette burns on her thighs hidden from her husband and had never told anyone about the sexual assaults.
(h) Country information before the IAA indicated that the majority of cases of rape and sexual assault in Sri Lanka are likely to go unreported due to social stigma.
(i) Despite the delegate’s acceptance of the Applicant’s credibility, the inherent credibility of this new claim, the consistency of the new claim with country information, the supportive evidence provided by the Applicant’s daughters and the assertion that there were marks on the Applicant’s face and body, which could have been easily verified in person, the IAA declined to conduct an interview with the Applicant.
(j) This decision was not reasonably open to the IAA.
2.The Second Respondent (the IAA) erred in the exercise of its jurisdiction to review the decision of the First Respondent by misunderstanding and/or misapplying what constitutes “credible personal information” under s 473DD(b)(ii) of the Act.
3.The IAA failed to exercise its jurisdiction to determine if the Applicant met the criteria under s 36(2)(b) (i) &/or s 36(2)(c)(i) of the Act, as being the member of the same family unit of a non-citizen covered by s 36(2)(a) or s 36(2)(aa) of the Act.
Particulars
(a) Also on 20 November 2017 the IAA determined the referred applications of the Applicant’s husband (now known as FPR17) and their four children (EUF17, EUG17, EUH17 & EUI17).
(b) The IAA decided to affirm the decisions of a delegate of the Minister not to grant protection visas to the Applicant’s husband and children.
(c) For the reasons set out in the Amended Applications made by FPR17 (see MLG2800/2017) and by EUF17, EUG17, EUH17 & EUI17 (see MLG2826/2017), the IAA failed to exercise the jurisdiction and/or erred in the exercise of its jurisdiction to review the decisions of the delegate of the Minister in respect of these applications referred to it.
(d) As a consequence of the failures to exercise the jurisdiction to review the delegate’s decisions in respect of these applications, the IAA constructively failed to consider whether the Applicant satisfied the criteria under s 36(2)(b)(i) &/or s 36(2)(c)(i) of the Act.
(sic.)
On 9 August 2024, the First Respondent lodged an outline of submissions in response. A joint list of authorities was also filed by the First Respondent.
The present application proceeded to final hearing before the Court as presently constituted on 13 August 2024. It was heard concurrent with the applications of FQT17’s husband (FPR17) and children (EUF18 and others). The parties were respectively represented by Counsel.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476 (Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considered ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia [1995] HCA 58 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 (Kelly J) at [19]-[20].
The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that “a” criteria for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
By s.36(2)(b), a non-citizen in Australia who is a member of the same family unit as a non-citizen that meets the criterion at ss.36(2)(a) or (aa) will also meet the statutory criterion for the grant of a protection visa.
An administrative decision maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
Division 3 of Part 7AA of the Act (as in force at the relevant times) governed the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, included a decision to refuse to grant a protection visa to a “fast track applicant”.
Part 7AA of the Act was arranged in eight divisions comprising ss.473BA-473JF.
Division 1 of Part 7AA commenced with a self-described “simplified outline” at s.473BA including that Part 7AA provided a limited form of review in relation to the decisions known as fast track reviewable decisions. A fast track applicant could not apply for review directly to the Authority and decisions of this kind were otherwise generally not reviewable under the Act. In conducting its review, the Authority was required to pursue the objective of providing a mechanism of limited review that was to be efficient, quick, free of bias and consistent with Division 3. The Authority did not hold hearings and was required to conduct its review on the papers save that, in exceptional circumstances, it may have considered new material and may have invited a referred applicant to provide, or comment on, “new information”.
Section 473DA provided that Division 3 (among two other provisions which are presently immaterial) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB provided that, subject to Part 7AA, the Authority was required to review a fast track reviewable decision that had been referred to it by considering the review material provided to it and to do so “without accepting or requesting new information” and “without interviewing the referred applicant”.
Subdivision C of Part 7AA, most relevantly at ss.473DC – 473DD, concerned how the Authority may “get” and “consider” new information that was not before the Minister when the decision was made under s.65:
473DC Getting new information
(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.
473DD Considering new information in exceptional circumstances
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.
By s.473EA of the Act, a decision of the Authority on Part 7AA review was required to be accompanied by a written statement which set out both “the decision” on review and “the reasons for the decision”.
FIRST GROUND
The first ground of judicial review is concerned with the Authority’s failure to exercise the discretion to invite FQT17 to give new information at an interview pursuant to the discretion afforded at then s.473DC of the Act.
Applicable principles
The authorities make it clear that there was no obligation on the Authority to “get” new information. The provision for getting new information under s.473DC is expressed in discretionary terms as distinct from mandatory (“may” not “must”). It does not constitute a duty on the Authority to get, search for, request or accept any new information that was not before the Minister in any circumstances.
It was not controversial that the discretion conferred on the Authority by s.473DC is subject to the implied condition that it be exercised reasonably: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (Kiefel CJ, Bell, Gageler and Keane JJ) (ABT17) at [3] citing Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (Gageler, Keane, Nettle, Gordon and Adelman JJ) at 227.
Was the Authority unreasonable in not getting new information?
The Authority’s reasons disclosed that it had considered but determined not to invite FQT17 to give new information by having regard to the statutory scheme, and the opportunities given to FQT17 to present her case during the process leading up to the delegate’s decision: [16] of the Reasons.
FQT17 contended that the Authority’s reasons for declining to exercise the discretion at s.473DC were unreasonably narrow and did not have proper regard to the inherent credibility of her claim and that her claimed physical injuries sustained from the sexual assault could have been easily verified at interview.
As earlier referenced, the established authorities make clear that the statutory scheme was such that there was simply no obligation on the Authority to afford FQT17 a further opportunity to verify her physical injuries from the sexual assault or otherwise justify her claim to have been sexually assaulted by extending an invitation to attend an interview. The delegate’s finding as to FQT17’s credit did not (as in ABT17) require or compel revisitation at an interview where the delegate had not known of nor could have assessed her credit as to the sexual assault claim.
It was a matter for the Authority to weigh the relevant information before it in deciding whether to exercise the discretion at s.473DC, including but not limited to the country information that instances of rape and sexual assault in Sri Lanka were likely to go unreported due to social stigma. It is not for this Court to revisit that consideration and replace it with a decision that it would have made.
In all of the circumstances, and against the context of the fast track framework and the overarching objectives of the legislation, it was not unreasonable that the Authority did not invite FQT17 to an interview in order to test the claims subject of FQT17’s new information. The statutory scheme did however afford FQT17 the opportunity to bring her sexual assault claim before the Authority as new information and meet the hurdles set by s.473DD which is subject of the second ground.
SECOND GROUND
The second ground of judicial review is concerned with the Authority’s decision not to consider the new information that was not before the delegate pursuant to the discretion afforded at then s.473DD of the Act.
Applicable principles
The established principles have developed since the Authority’s decision in this matter, but nonetheless apply to the present case and were not contentious.
The High Court of Australia in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (AUS17) (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) outlined the proper approach to the assessment at s.473DD. The Authority was first to determine whether either of the limbs to s.473DD(b) were engaged and, only in the event of an affirmative engagement, may it have turned to consider whether it was satisfied that there were “exceptional circumstances” for purposes of s.473DD(a) and as to justify its consideration of the “new information”.
In undertaking the assessment of whether new information was “credible personal information” for purposes of s.473DD(b)(ii), the threshold for what was “credible” was a relatively low bar - all that was required was that the Authority reach the state of satisfaction that the new information was information which was capable of being accepted as truthful or accurate or genuine, as distinct from an assessment of whether the new information was true: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) (Bromberg J) at [40]; subsequently endorsed by a majority of the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 (BTW17) (Besanko, Mortimer and Jackson JJ) at [75]-[77] and since applied in DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 530 (Snaden J) at [57]. In BTW17, at [76]-[77], the Full Court gave the following explanation of the task which is apt to the present case:
[76] Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
[77] Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 at [23]-[26], there is some overlap, and the factors in (b) may well inform the factors in (a).
Did the Authority misconstrue or incorrectly apply s.473DD?
The new information subject of this ground related to the claim that FQT17 was sexually assaulted in 2013 and was contained in a statutory declaration of the FQT17 dated 30 May 2017 and statutory declarations of her daughters (extracted and summarised in the above).
The relevant part of the Authority’s decision is found at [5] to [8]:
5. The submission includes reference to new claims outlined by the applicant in an attached statutory declaration by the applicant dated 30 May 2017. The new claims include instances of physical and sexual assault (including scarring to her face and cigarette burns to her thighs), threats of physical and sexual harm, publication of sexually explicit images portraying the applicant, her attempted suicide in Sri Lanka, her mother’s role in rescuing her during her attempt and her subsequent hospital admission, and lack of availability of mental health services in Sri Lanka, and the risks she faces as a single Tamil woman in Sri Lanka, as a head of a female-led household in Sri Lanka and having an extended period of detention on arrival in Sri Lanka due to not having immediate family members present to post surety for her. The applicant has also claimed her mental state is such that she would be driven to suicide if forced to return to Sri Lanka. The applicant’s statutory declaration and the claims therein were not before the delegate and are new information.
6. I note that the applicant’s representative has also forwarded to the IAA, statutory declarations by the applicant’s daughters, LG and GG, which came into existence at about the same time as their mother’s. LG’s declaration makes reference to her mother becoming unwell and attending hospital while in Sri Lanka, and having visited a different part of Batticaloa for a couple of days. GG’s declaration refers to observing her mother having been distressed and her grandmother disclosing to her that her mother had tried to commit suicide one day when they had been at school. GG goes on to state that she does not know if her sisters are aware of her mother’s attempted suicide. I note that the applicant’s other daughter, SG, also provided a statutory declaration at about the same time, and did not make any reference to observing any changes in her mother’s demeanour, her mother’s attendance at hospital or their visit to Batticaloa for a few days. Given the seriousness of the reported incident and that the sisters were living in the same household, I have considerable doubt that GG would have been told information about an attempted suicide by her mother and not discussed it with her sisters. In this regard, I consider the inconsistencies between the sisters’ accounts undermine the weight I attach to them as independent corroboration of the applicant’s new claims.
7. Furthermore, all the daughters indicated that only understood the extent of their family’s problems since coming to Australia and I consider this suggests that their declarations are influenced by what they have been told by their parents since arrival and as part of the visa application process. I note that LG was interviewed following her arrival in Australia and made no mention of changes in her mother’s health. I also note that all of the applicant’s daughters provided personal information as part of their father’s visa application and were assisted to do so by a legally qualified migration agent. Although not in receipt of independent legal advice, I am satisfied that they had an opportunity to provide information about their mother’s health prior to the delegate’s decision.
8. The applicant’s representative has referred to country information, including information relating to the security situation in Sri Lanka as well as circumstances faced by women in Sri Lanka. These reports relate to circumstances in Sri Lanka generally and while I accept that women in Sri Lanka face heightened risk of sexual and other violence, I do not consider the country information to necessarily corroborate the applicant’s particular circumstances.
FQT17 contended that the Authority incorrectly approached its assessment of whether the new information was “credible personal information” for purposes of s.473DD(b)(ii) as a fact-finding exercise - and made findings about the truth of the new information as distinct from asking itself whether the new information was capable of being believed. She contended that the Authority’s error could be seen from the lengths to which it went to dismiss her inherently credible and consistent claim of sexual assault.
The First Respondent opposed this characterisation and asked the Court to find that the Authority simply mirrored the statutory language by expressing that the new information “is not credible”, was consistent in its use of the term “credible”, and did not state that it was not satisfied that the new information was not “true”. It was submitted that the obligation rested with the Applicant (under s.5AAA of the Act) to specify all particulars of her claim and to provide sufficient evidence to establish the claim but here she had failed to do so.
The First Respondent also sought to justify the Authority’s analysis of other types of objective evidence that FQT17 could have presented to enhance the credibility of her claims as having disclosed a careful consideration of corroborative evidence that may have bolstered its ability to determine whether the new claims were capable of being believed. The First Respondent pointed to the decision in BTW17 (at [44]) where it was found that the Authority is “not required to make [a determination with respect to 473DD(b)(ii)] in a vacuum” and argued that the Authority was therefore entitled to compare the new information before it against other materials available on review.
Critical to this ground is an assessment of how the Authority approached its assessment of what was “credible” for purposes of s.473DD(b)(ii).
Whilst the Authority correctly adopted the language of the statute, on a fair reading of the Authority’s reasons, the analysis and reasoning for rejecting the new information about FQT17’s sexual assault claim discloses an evaluation that went beyond the threshold level referred to in CSR16. The Authority’s process involved the attribution of weight to various parts of the new information with other information (including other evidence and country information) before it and, after weighing the various information before it, the decision maker dismissed the new information as not credible.
Ultimately, the process of analysis undertaken led the decision maker to arrive at a conclusion that the new information was in fact inconsistent with other evidence before it and therefore was not credible, as distinct from whether it was inherently implausible and not at least open to being believed. That level of analysis ought to have been undertaken only after the new information was admitted and received, as part of the Authority’s assessment of all of the evidence properly before it in relation to FQT17’s claims.
As the Authority’s consideration of s.473DD(b)(ii) conceivably may have infected its subsequent assessment of whether there were “exceptional circumstances” for purposes of s.473DD(a), the identified error is material and this second ground is made out.
THIRD GROUND
As there is no established error of jurisdiction in the decisions of the Authority to refuse protection visas to FQT17’s husband (FPR17) or children (EUF18 and others), any failure to consider whether FQT17 met the criterion at s.36(2)(b) is of no material affect.
CONCLUSION
For the above reasons, the application is allowed with costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 26 November 2024
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