FSE17 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 172
•19 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FSE17 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 172
File number(s): SYG 4016 of 2017 Judgment of: JUDGE LAING Date of judgment: 19 February 2025 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA failed to consider the audio of an entry interview – whether the IAA’s decision was affected by illogicality, irrationality or legal unreasonableness – application dismissed Legislation: Migration Act 1958 (Cth) ss 425, 473CB & 473DC Cases cited: AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1252
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551
DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134
EBY17 v Minister for Immigration and Border Protection [2019] FCA 222
Minister for Home Affairs v AYJ17 [2019] FCA 591; (2019) 165 ALD 64
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436
Division: General Number of paragraphs: 68 Date of hearing: 15 August & 28 November 2024 Place: Sydney Counsel for the Applicant: Mr J Smith Solicitor for the Applicant: Varess Counsel for the First Respondent: Ms N Maddocks Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 4016 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FSE17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
19 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application be 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 LAING:
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a protection visa.
For the following reasons, I have concluded that the application before the Court must be dismissed.
BACKGROUND
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival.
On 11 November 2016, the applicant applied for a protection visa. The Delegate refused the application on 2 March 2017. The matter was then referred to the IAA for review.
On 28 November 2017, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA accepted that:
(a)the authorities arrested the applicant and a few of his friends in connection with a bomb incident in 2010 (at [22]);
(b)the applicant was released that night, after the involvement of a club and his parents, because he was a student and because of his age (at [22]);
(c)the authorities continued for a time to harass the applicant and his family following the incident with questions and threats (at [22]);
(d)the authorities searched the applicant’s family home and, on one occasion, members of the Karuna Group slapped the applicant (at [22]);
(e)after the applicant left Sri Lanka for Malaysia, the harassment of his family continued during part of 2010, leading his parents to relocate for a time and to lodge a complaint with the Human Rights Commission (HRC) (at [22]);
(f)the applicant's general address, educational, work, family and travel history were as set out in his arrival interview and visa application, except for the matters that it had otherwise rejected (at [22]);
(g)the applicant provided assistance as a volunteer to Tamil Refugee Council (TRC) events in Melbourne in 2013 and 2014, by helping with decorations and arranging chairs (at [23]);
(h)there were people taking photos and videos at the events (at [23]);
(i)the applicant introduced people he knew to his friend who was checking witness statements for the TRC in relation to a UN war crimes investigation in 2014 (at [23]);
(j)the applicant would be considered a failed asylum seeker by the Sri Lankan authorities (at [25]); and
(k)the applicant and members of his family lived in a part of Sri Lanka that may have been controlled by the Liberation Tigers of Tamil Eelam (LTTE) at times during the war (at [40]).
The IAA did not accept that:
(a)the applicant was arrested, questioned, beaten and tortured over two days by the Terrorist Investigation Department (TID) (at [21]);
(b)the applicant’s uncle was a member of the LTTE or that the applicant was questioned about his uncle’s whereabouts (at [21]);
(c)two of the applicant’s friends were former LTTE cadres who had been through rehabilitation (at [21]);
(d)the applicant’s parents paid a bribe to secure his release from the TID (at [21]);
(e)the TID imposed conditions on his release (at [21]);
(f)the applicant and his mother visited his uncle in detention in 2009 (at [21]);
(g)the applicant was in hiding at his aunt's place or at his uncle’s place for the period claimed (at [21]);
(h)the applicant was suffering from a mental health disorder, illness or condition that required treatment (at [24]);
(i)the applicant’s circumstances justified a finding that the applicant was at risk of harm for reason of any real or perceived links to the LTTE, or any imputed political opinion, and/or as a young Tamil male from the east (at [41]-[45]); or that
(j)the applicant would face a real chance of relevant harm due to his association with the TRC (at [46]-[50]), or on the basis of being a failed Tamil asylum seeker (at [51]-[58] and [61]-[65]).
Having regard to the above, the IAA concluded that the applicant was unable to meet the criteria for a protection visa. Accordingly, the IAA affirmed the Delegate’s decision.
APPLICATION FOR REVIEW
The applicant commenced the current proceeding through an application filed on 22 December 2017. The matter remained in the central migration docket for some time and was previously docketed to another judge before being docketed to me and listed for hearing. By the time of the hearing, the applicant relied upon an amended application filed on 18 July 2024 containing the following grounds:
1.The Authority made a jurisdictional error by failing to consider the audio recording (Audio) of the 25 January 2013 Irregular Maritime Arrival Entry Interview with the applicant (Entry Interview).
Particulars
a.The Audio was included as part of the material provided to the Authority under s 473CB(1) of the Act.
b.The Authority had a duty to consider the Audio under s 437DB(1) of the Act in order for the exercise of its decision-making power to be valid.
c.The findings made by the Authority about what was said by the applicant in his Entry Interview – as recorded at [17]-[22] of the Authority’s Decision – show that the Authority did not engage in an active intellectual process with respect to the Audio, because:
i.the Authority made findings about matters that were not said by the applicant in the Entry Interview, in circumstances where proper consideration of the Audio would have resulted in those findings not being made; and
ii.the Authority’s summary of what was said by the applicant in the Entry Interview is instead drawn from Immigration’s written record of the Entry Interview (Written Record).
d.The failure to consider the Audio was material to the Authority Decision.
2.Further or in the alternative to ground 1, it was illogical or irrational so as to amount to a jurisdictional error for the Authority to reject – as it did at [21] of the Authority’s Decision – certain protection claims made by the applicant on the basis of “significant changes in [the applicant’s] protection claims together with the other discrepancies”.
Particulars
a. The particulars to ground 1 are repeated.
b.The Authority’s findings about what the applicant said and did not say at the Entry Interview are based wholly or substantially on the Written Record, rather than the Audio.
c.The Written Record contains features that would lead any rational or logical decision-maker also to consider the Audio before making findings about what was and what was not said by the applicant in the Entry Interview, including that:
i.the very brief notes in the Written Record of what the applicant is described to have said in the Entry Interview are capable at a high level of encompassing the applicant’s claims for protection; and
ii.the Written Record contains exact, apparently copy and pasted, text in different segments.
d.The Authority did not exercise sufficient caution in its reliance on alleged omissions made in the Entry Interview based on the following features of that interview:
i.the Entry Interview was conducted shortly after the applicant arrived in Australia;
ii.the Entry Interview was conducted after the applicant took a long journey on the ocean in cramped and difficult conditions;
iii.a significant part of the Entry Interview concerned questions designed to elicit information about “people smuggling”;
iv.the Entry Interview was the applicant’s first substantive and formal engagement with Australian officials, in circumstances where the applicant came from a country where authority figures were viewed with some fear and mistrust;
v.the applicant was asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who was a stranger, without the assistance and support of an immigration lawyer or agent; and
vi.the applicant was being asked to digest a lot of information quickly and in circumstances which he may have perceived as hostile (see MZZJO v Minister for Immigration and Border Protection (2014) 239 FCAR 436; [2014] FCAFC 80 at [56]).
e.Had the Authority also given genuine consideration to the Audio, the Authority would have exercised further caution in its reliance on alleged omissions made in the Entry Interview, because the Audio shows that:
i.almost none of the text in the section titled “Important Information” on page 1 of the Written Record was read to the applicant. In particular, the words “You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said” were not read to the applicant;
ii.the Entry Interview was conducted hours before the applicant had an interview with his case manager; and
iii.the applicant was invited to and did sign the Written Record without being warned of the significance of that step, and without having the Written Record substantively shown to him or interpreted to (translated for) him.
e.The Authority should have exercised additional caution given that it did not itself have the opportunity of assessing oral evidence from the applicant, given that the applicant was not prior to, or after the making of the Delegate’s Decision, put on notice about his omission to raise certain claims in the Entry Interview.
f. The Authority’s reliance on:
i.omissions allegedly made by the applicant in the Entry Interview as to his “address history” (at [19] of the Authority’s Decision); and
ii.alleged discrepancies between supporting documents provide by the applicant and the applicant’s protection claims (at [20] of the Authority’s Decision),
had no rational relationship to the assessment of the veracity of the applicant’s protection claims.
g.The Authority’s reasoning in respect of the applicant’s statements in the Entry Interview regarding the applicant’s uncle, made at [17]-[18] of the Authority’s Decision, was inconsistent and irrational.
h.The illogicality or irrationality of the Authority’s error was material to the Authority’s Decision.
3.Further or in the alternative to grounds 1 and 2, the Authority’s Decision was legally unreasonable so as to amount to a failure by the Authority to lawfully exercise its decision-making power under s 473CC(2) of the Act.
a. The particulars to ground 2 are repeated.
b.The Authority’s rejection of parts of the applicant’s protection claims at [21] of the Authority’s Decision was a critical step in the Authority’s ultimate conclusion.
c.The rejection of those protection claims, which was based on findings about what was said and what was not said by the applicant in the Entry Interview, lacked an evident and intelligible justification based on the materials before the Authority.
(As per original)
Ground 1 – did the IAA fail to consider the Audio?
Ground 1 contended that the IAA failed to consider the Audio recording of the Entry Interview. This, it was submitted, was evident in how the IAA dealt with the Entry Interview at [17]-[22] of its decision.
The IAA dealt with the interview as follows (at [17]-[19]):
17.In his arrival interview on [date omitted] the applicant said he left Sri Lanka because of a bomb blast incident and gave details that were basically consistent with the details in his SHEV application - it happened while on his way home from tuition, he was with a few friends, the police took them for investigation and questioned them, he was released because he was a minor and with the intervention of the children's club, and it occurred around [a time in] 2010. He also mentioned that after the bomb incident he was questioned by the authorities, including the KG, at home and on his way to tuition, and that on one occasion the KG hit him. The applicant made no mention that after the bomb incident he was subsequently arrested and detained for two days by the TID or anyone else, that during that detention he was questioned, tortured and beaten, that his parents had to pay a bribe for his release or that his release was conditional. He made no mention of his uncle S being in the LTTE or that he was questioned about S's whereabouts. When asked at the arrival interview if he or the members of his family were associated with or involved with any political groups, or were involved in any activities or protests against the government, he answered no to both questions, but added that an uncle of his had stood for election in [an area], he didn't know which party it was and the election was around [a specified year]. He did not mention that two of the friends he was arrested with during the bomb incident were former LTTE cadres, that they had been through rehabilitation and that they were beaten in front of him. His failure to mention he was arrested, questioned, beaten and tortured for two days, his uncle S was in the LTTE, and two if his friends were LTTE cadres who were beaten in front of him are significant omissions.
18.As discussed the applicant made no mention of S in his arrival interview. In his SHEV application he stated S was a LTTE member and missing since 2006. At the SHEV interview he claimed S was a colonel in the LTTE; he and his mother visited S in detention in 2009; and he doesn't know what S is doing now because they do not know what happened to S. In short, the applicant's evidence changed from no mention of S to S being a colonel in the LTTE and from S going missing in 2006 to his being visited in detention by the applicant and his mother in 2009…
19.There are other discrepancies in his evidence. He said his older brother was troubled by the authorities which was one of the reasons the applicant left Sri Lanka (arrival interview), made no mention of his older brother having problems (SHEV application) or his older brother was questioned about who the applicant socialised with and his friends (SHEV interview). He claimed in his SHEV application that he spent a month and a half hiding in [an area] from August 2010 and then two weeks hiding in his uncle's house in [a second area] before he went to [a third area] and left for [another country]. However, in his arrival interview he gave a detailed address history in which he claimed he was at the family's address in [the second area] until 28 October 2010, then spent only four days at a lodge in [the third area] before he left for [the other country on a date], and he was asked twice if he had lived anywhere else in Sri Lanka and both times said no. Additionally, he claimed in his SHEV application that he stayed indoors the whole time he was at his aunt's place in [the first area] but also claimed that he observed that there was one SLA officer for every ten civilians in [the area].
At [20], the IAA referred to supporting letters that had been provided that were considered to contain some inconsistencies with the applicant’s evidence. However, the letters were considered to support broadly certain aspects of the applicant’s claims. The IAA considered that, “[s]ignificantly, neither letter mention[ed] his subsequent arrest, questioning, torture and beating, whether by the TID or other authorities; that S was in the LTTE; or that some of his friends were former LTTE cadres”.
At [21]-[22] the IAA reasoned:
21.When I consider the significant changes in his protection claims together with the other discrepancies, and after considering the factors identified above in weighing his evidence including the applicant's general fear and anxiety at the time of the SHEV interview, based on the totality of his evidence I am satisfied that the applicant has embellished and fabricated parts of his evidence to boost his claims for protection. I reject the applicant's claims that he was arrested, questioned, beaten and tortured over two days by the TID, that his uncle S was a member of the LTTE and he was questioned about S's whereabouts, and that two of his friends were former LTTE cadres who had been through rehabilitation. It follows from my rejection of those claims that I also do not accept that his parents paid a bribe to secure his release from the TID, that the TID imposed conditions on his release and that he and his mother visited S in detention in 2009. I also reject his claims that he was in hiding at his aunt's place… from August to October 2010 or that he was in hiding for two weeks at his uncle's house… before he departed for [another country].
22.Based on his generally consistent evidence, together with those parts of his evidence that I consider to be generally free of embellishment or fabrication, I accept that because of the bomb blast incident the authorities arrested the applicant and a few of his friends on their way home from tuition in… 2010 and he was released that night after the involvement of the children's club and his parents because of he was a student and because of his age. I am prepared to accept that following the bomb blast incident the authorities continued for a time to harass the applicant and his family, including his parents and older brother, with questions and threats, searched his family home and that on one occasion members of the KG slapped the applicant. I also accept that after the applicant left Sri Lanka for [another country] that the harassment of his family continued… leading his parents to relocate for a time to [another area] and to lodge a complaint with the HRC. I accept the applicant's general address, educational, work, family and travel history as set out in his arrival interview and SHEV application, except for those matters rejected above.
Although the IAA used the phrase “arrival interview”, it is apparent from the form that was used that the interview in question was an “entry interview”: see Minister for Home Affairs v AYJ17 [2019] FCA 591; (2019) 165 ALD 64 (AYJ17) at [9]-[11] (Moshinsky J).
The particulars to the ground contended that the IAA made findings about matters that were not said by the applicant in the Entry Interview, in circumstances where proper consideration of the Audio would have resulted in those findings not being made. They contended that the IAA’s summary of what was said by the applicant in the Entry Interview was instead drawn from the Written Record of the Entry Interview.
I accept that the Audio was important evidence before the IAA and that failure to consider it may be capable of demonstrating jurisdictional error. However, this does not mean that the IAA was required to set out in detail what was stated in the Audio in its decision. Whether or not an inference ought to be drawn that evidence was not considered will often depend upon the nature of the evidence in question within the context of the reasons for decision.
An affidavit is in evidence containing transcripts of both the Audio and also the interview with the Delegate (Transcripts). In written submissions (AS), the applicant submitted at [26] that an inference that the IAA failed to consider the Audio ought to be drawn from the following circumstances:
(a)the IAA only referred to the “interview” rather than the audio in its decision;
(b)the IAA recorded “almost verbatim” what was recorded in Part C of the Written Record (CB 12);
(c)the IAA clearly considered the “significant changes” in the protection claims as between his entry interview and subsequent claims as being important; and
(d)the IAA did not refer to the following statements by the applicant at interview:
i“they came … investigating us at homes and wherever they could find” ([Transcripts], p 17);
ii “they would come threaten, threaten me…” ([Transcripts], p 17);
iii“they would investigate asking like ‘who threw the bomb? Tell me now, tell me now.” ([Transcripts], p 18);
iv he “had troubles from all sorts of parties” ([Transcripts], p 19);
v the applicant and others were “rescued” ([Transcripts], p 18);
vithe applicant specifically referred to the “CID” ([Transcripts], p 19); and
viiin relation to the questions “Have you or any members of your family been associated or involved with any political group or organisation” and/or “Were you or any members of your family involved in any activities or protests against the government?”, the applicant answered “no-one from my immediate family” and “Um, I need to clarify this” ([Transcripts], p 18).
The applicant submitted (at AS [35]) that if the IAA had considered the Audio, then the “changes” or “discrepancies” identified by the IAA would have been explained, or treated with considerably more doubt. This was said to be for the following reasons:
athe IAA would have become aware that the applicant was not in fact read the “Important Information” that appears on p 1 of the Written Record (CB 1), including the part that says “You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said”;
bas to the alleged arrest, detention and torture by the TID… the IAA would have (i) heard that the applicant in fact said that “they”, without going into specifics about who “they” were, repeated “threatened”, “investigated… wherever they could find”; (ii) referred in general to having trouble from “all sorts of parties”; and (iii) referred specifically to the CID, without any follow-up question from the interviewer. In this regard, the Delegate recognised at CB 54 that “[t]he exact division of responsibility between CID and TID remains unclear”;
cas to S, the applicant’s uncle who allegedly had ties with the LTTE… the IAA would have heard that the applicant interpreted questions 2 and 3 of Part C as being directed to his “immediate family”, and also noted explicitly that he needed to “clarify” his answers about them;
das to the applicant’s claims about his two friends who allegedly were former LTTE cadres caught up in the same persecution as the applicant… the IAA would have heard that the applicant repeatedly used the first person plural pronouns “we” and “us” to describe the events which occurred to him;
eas to the reference to the applicant’s older brother… the IAA would have heard that that reference appears of disproportionate importance in the repetitive summary in the Written Record compared to its minimal importance in the Audio; and
fas to the applicant allegedly mismatching address histories… the IAA would have heard that the way that the questions were in fact posed to the applicant, and the way they were interpreted by him, were as to permanent residential addresses, not places where the applicant had temporarily resided (Tran Affidavit, pp 5-7).
Relying upon Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) (Robertson J), the applicant submitted (at AS [37]) that the Audio was of high importance to the exercise of the IAA’s function under Part 7AA of the Migration Act 1958 (Cth) (Act). This was having regard to the matters stated above, as well as:
(a)the inherently limited, summary and necessarily brief nature of the Written Record, as identified in AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1252 (AAI20) (Stewart J);
(b)the factual limitations with this specific Written Record;
(c)the fact that the Delegate relevantly found that the applicant had given a “consistent” history across his interviews; and
(d)the fact that the only matter arising from the Entry Interview that was put to the applicant in the SHEV interview (or otherwise) was a very brief point about the applicant’s brother (Transcripts, p 42): AAI20 at [74].
The applicant did not seek to focus, however, upon any particular aspect of the evidence that was not considered for the purpose of demonstrating that it was individually capable of establishing jurisdictional error. Instead, the applicant’s argument was based upon the collective importance of numerous aspects of the applicant’s evidence at interview and the reasons that the applicant contended that an inference should be drawn that the Audio was not considered. At hearing, the applicant confirmed that his essential point was that an inference ought to be drawn that the IAA didn’t have regard to the Audio in its entirety. This was contended to be a problem because it mattered how the applicant’s evidence was expressed at interview and that expression needed to inform the findings that were ultimately made by the IAA. The question, then, is whether an inference ought to be drawn that the Audio was not considered.
I accept the Minister’s submission that the more likely inference is that the IAA considered the Audio.
As the Minister submitted, there are indications in the IAA’s decision record that the IAA’s consideration of the Entry Interview went beyond the Written Record. Those indications, together with the IAA’s statement at [2] that it had regard to the material given to it by the Secretary under s 473CB of the Act, included the following:
(a)At [17] of the IAA’s decision, the IAA stated:
…When asked at the arrival interview if he or the members of his family were associated with or involved with any political groups, or were involved in any activities or protests against the government, he answered no to both questions, but added that an uncle of his had stood for election in [an area], he didn't know which party it was and the election was around 2009… (emphasis added)
This records the applicant’s evidence at p 18 of the Transcripts. In contrast, the Written Record recorded the answer as “yes” to the first of the questions (at CB 12, Q2). The Written Record also recorded the applicant as saying “My uncle stood for an election in [a specified area]. I don’t know the name”. In contrast, the Audio recorded the applicant as saying that he didn’t “know the name of the party” (emphasis added), which was what was recorded by the IAA.
(b)At [19] of the IAA’s decision, the IAA stated:
“…in his arrival interview he gave a detailed address history … he was asked twice if he had lived anywhere else in Sri Lanka and both times said no.” (emphasis added)
Again, this accurately records the applicant’s evidence at pp 6-7 of the Transcripts. The Audio records the applicant being asked twice whether he had lived anywhere else in Sri Lanka, in response to which he responded no on both occasions. In contrast, the Written Record records the applicant only being asked this question once (CB 4, Q14).
There are therefore parts of the IAA’s recount of the Entry Interview that appear to have come from the Audio rather than the Written Record.
The IAA was not required to set out in its decision every statement that was made by the applicant during the interview. The IAA’s concerns, as set out above, were that the applicant did not mention in the Entry Interview:
(a)that after the bomb incident he was subsequently arrested and detained for two days by the TID or anyone else, that during that detention he was questioned, tortured and beaten, that his parents had to pay a bribe for his release or that his release was conditional;
(b)his uncle S being in the LTTE or that he was questioned about S's whereabouts. This was notwithstanding his being asked if he or members of his family were associated with or involved with any political groups, or were involved in any activities or protests against the government;
(c)that two of the friends he was arrested with during the bomb incident were former LTTE cadres, that they had been through rehabilitation and that they were beaten in front of him.
The IAA was also concerned that the applicant raised his older brother being troubled by the authorities in the Entry Interview as being a reason he left Sri Lanka, did not refer to this in his protection visa application, but then claimed that his older brother had been questioned about him during his SHEV interview.
Further, the IAA was concerned that in the SHEV application the applicant claimed he had spent 1½ months hiding at an aunt’s house from August 2010 and then two weeks hiding in his uncle's house before travelling to another area and leaving for another country. This was contrasted with the address history given at the Entry Interview, where the applicant claimed to have been at the family's address in his home area until 28 October 2010, before spending four days at a lodge in another area and then leaving for another country. The IAA was concerned that the period of hiding at his aunt and uncle’s residences were not mentioned in the Entry Interview, with the applicant twice responding “no” to questions about whether he had lived anywhere else in Sri Lanka.
It has not been demonstrated that the above recitation of the applicant’s evidence was not an available interpretation of that evidence from the Audio. Although the applicant made general reference at the Entry Interview to being investigated, threatened and questioned and to having “had troubles from all sorts of parties” (including the CID), he only referred to one occasion when he had been taken by the authorities (being the time after the bomb was thrown, when he was detained and released after intervention of the club). This was the only time the applicant mentioned being detained by the police or security organisations, when this question was put to him at the Entry Interview (Transcripts, p 18). The applicant did not, at the interview, refer to being subsequently arrested and detained over two days by the TID (or anyone else), during which he was questioned, beaten and tortured.
When asked about whether any members of his family had been associated or involved with any political group or organisation, the applicant initially answered no. However, in response to the next question of whether any members of his family had been involved in activities or protests against the government, the applicant responded “no”, and then clarified that his “uncle was part of a party” and “stood for an election” in the applicant’s home area. The applicant then added “[b]ut no-one from my immediate family”. The applicant’s subsequent suggestion that he “need[ed] to clarify” something was because he did not “know the name of the party” (Transcripts, p 18).
This evidence was in contrast to what the applicant said at his SHEV interview. When asked about his family’s political involvement or activities, the applicant referred to the uncle who had “contested the election”. He then referred to “another uncle” who was “in the LTTE” (Transcripts, p 37). It was the uncle in the LTTE (subsequently said to be an LTTE Colonel whose relationship with the applicant had caused the applicant to have an adverse profile) the IAA was concerned hadn’t been mentioned in the Entry Interview.
The applicant did not express at the Entry Interview that two of the friends he was arrested with during the bomb incident were former LTTE cadres, that they had been through rehabilitation or that they were beaten in front of him.
At hearing, the applicant submitted that if the IAA had considered the Audio, then it is likely that it would have referenced the difficulties with the Written Record in its decision. I am not persuaded this is the case. The IAA’s obligation to give reasons did not extend to providing commentary upon the adequacy of the material before it, or the approach taken by the Department, beyond what it considered material to its reasons for decision. If issues or discrepancies were apparent to the IAA in the Written Record, then it was open to the IAA to have simply preferred the Audio as the more accurate record (rather than the purported summary of the Audio).
The applicant submitted that if genuine consideration had been given to the Audio, then the IAA would have commented on the fact that the “Important Information” section on the Written Record had not been read to the applicant. That section warned that different information given at a future interview could raise doubts about the reliability of the information given and confirmed that information provided would not be provided to the authorities of the applicant’s home country.
However, I have not been persuaded that the IAA was obliged to comment on this in its decision record. The applicant has not demonstrated, by reference to any authority, that the IAA was obliged to do so. The fact that this (and other features) of the interview were not specifically referenced in the IAA’s decision does not require a conclusion that the IAA was unaware of what occurred at the interview, or that the Audio was not considered. It may be that the IAA did not attribute the same level of significance to this issue as the applicant, or that it took it into account as part of its general understanding of how the interview proceeded. Although another decision maker may have reasoned differently, this does not demonstrate that the IAA was obliged to reason in the manner suggested by the applicant.
Having regard to the above, I accept the Minister’s submission that the more likely inference is that the IAA did consider the Audio. I have found above that the IAA’s account was an available assessment of the evidence given at the Entry Interview. Within this context, I accept the Minister’s submission that there is insufficient basis for doubting that the IAA was aware of the matters relied upon at AS [35 (a)-(b) and (d)-(e)]. In relation to (c), I have set out above the applicant’s clarification at the Entry Interview regarding his “immediate family”. There is similarly insufficient basis for finding that the IAA was unaware of this form of the evidence.
In relation to (f), I accept the Minister’s submission that the applicant was not asked questions about his “permanent” residential addresses in the Entry Interview, but was asked about anywhere he had lived (without temporal limitation). The applicant’s answers do not establish that the applicant understood that he was only being asked about “permanent” addresses throughout the course of the interview. Even if this were the applicant’s initial understanding, the Delegate’s subsequent questioning appears to have indicated to the applicant that the Delegate was also asking about temporary addresses (and some information about temporary addresses was provided by the applicant). Within this context, I am not persuaded that the IAA’s reasoning in relation to the addresses was relevantly closed to the IAA.
Having regard to the above, I am not persuaded that the IAA failed to consider, or give requisite consideration to, the Audio. I accept the Minister’s submission that the IAA’s decision demonstrates that it actively engaged with what was said by the applicant in the Audio and that this engagement informed the IAA’s reasoning in a manner that was open.
It follows that ground 1 is unable to succeed.
Grounds 2 and 3 – was the IAA’s approach illogical, irrational or unreasonable?
Ground 2 contended that it was illogical or irrational for the IAA to have rejected at [21] certain protection claims made by the applicant on the basis of “significant changes in [the applicant’s] protection claims together with the other discrepancies”. Ground 3 relatedly contended that the IAA’s approach was legally unreasonable.
The particulars to the ground (and, to some extent, the written submissions) relied upon circumstances considered under ground 1. These included the applicant’s contention that the IAA did not give requisite consideration to the Audio. For the reasons given under ground 1, this has not been accepted.
The applicant submitted that the IAA did not exercise sufficient caution in its reliance upon alleged omissions made in the Entry Interview.
The applicant relied upon a number of cases in support of the ground. These included MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436, in which caution was encouraged by North, Bromberg and Mortimer JJ (as her Honour then was) before relying upon omissions by applicants at entry interviews in reaching adverse credibility findings (at [56]-[57]).
The applicant also relied upon Minister for Home Affairs v AYJ17 [2019] FCA 591; (2019) 165 ALD 64 (AYJ17). In that case, Moshinsky J found that it was illogical or irrational for the IAA to have relied upon an omission in an arrival interview, in the particular circumstances of that case. Those circumstances included the nature and context of the interview in question, as well as the fact that the claims made at the interview were capable of encompassing the claim the IAA found had been omitted.
The applicant acknowledged, however, that every case asserting jurisdictional error based on illogical or irrational decision-making is highly fact-specific. This position is undoubtedly correct. Although I am conscious of the many cases that were relied upon by the parties, the correct approach is not to determine the question by analogy but rather through the application of principles to the particular circumstances of this case: see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [42] per Allsop CJ, Robertson J and Mortimer J (as her Honour then was).
The applicant contended that this was a case in which error was demonstrated. As will be seen from the above, the applicant relied upon a number of particulars to the ground in contending this. In written submissions (AS), the applicant emphasised the following (at [51]):
afirst, unlike DWA17, EMS18 and DOW17, the IAA did have a copy of the Audio, hence would have been aware of the matters set out at [35] above. Nevertheless, the IAA proceeded to make the credibility findings it did. Unlike EMS18, the applicant does here contend that there are matters from the Audio which – although still at a relatively high level of generality – are not recorded in the Written Record;
bsecondly, the fact that the Audio shows that the applicant – despite not speaking English – was invited to sign the Written Record as a true copy despite it not being translated to him ([Transcript], p 26);
cthirdly, the Written Record contains a number of obvious features which would have led any rational or logical decision-maker to exercise significant caution in drawing conclusions from it: compare to DWA17 at [55]. Those features are that the:
icritical page of the Written Record, being questions 1 to 7 of Part C (CB 12-13), contains identical, copy-and-pasted text responses; and
iianswers recorded in respect of those questions are so open-ended and vague, that they are capable at a high level of encompassing the applicant’s claims for protection, at least in circumstances where so few follow-up questions are recorded as having been asked;
dfourthly, that the “caution” from MZZJO applies with particular force here. Not only had the applicant recently arrived from a long boat trip overseas, had recent difficulties with the authorities, and been subject to an interview that was palpably not for the dominant purpose of assessing his claims for status as a refugee (less than 3 of the 20 pages of the Audio relate to those claims), but the applicant had turned 18 only months before the Entry Interview.
Also relevant to this factor is the fact that the Audio shows that the officer failed to give the warning on page 1 of the Written Record. Given the weight the IAA gives to the allegedly differing accounts given by the applicant in various interviews, this rises to the “realistic potential or possibility to have fatally infected the Authority’s reasoning process”. This only decreases the likelihood that this applicant considered that absences of a full picture of his claims for protection would be held against him in a future visa application;
efifthly, it is of great relevance that the Delegate, who was the person who actually interviewed the applicant, explicitly found that the applicant gave “consistent” evidence across all his interviews: see AYJ17 at [43]; and
flastly, unlike in DOW17, the applicant was not ever given any opportunity to comment on the alleged “changes” and “inconsistencies”, other than the minor matter of the incident with his brother, which – given the Delegate’s finding about his consistent story – the Court may infer was sufficient to satisfy the Delegate.
At hearing, the applicant relied upon a series of “critical features” in relation to this ground. Many of those features had subcomponents. A number overlapped with features set out above. The applicant helpfully handed up an aide-mémoire at the resumed hearing, summarising his associated points in this regard. It stated as follows:
1 (Time and age features)
aTime: alleged incident 2.5 years prior to the time of the Entry Interview;
bAge: applicant 15 at time of alleged incident and 18 at time of Entry Interview.
2 (Defects of the Written Record)
a Copied and pasted text in Cl and C6;
b Open-ended nature of recorded answers given;
c Lack of follow-up questions recorded; and
d Specific reference to the CID in C7 not recorded as explored.
3(Features relating to the substance of the Entry Interview, based on the transcript)
a Most of the "Important Information" from Part A not read;
bQuestions relating to protection only occupying about 11 % of interview;
c Only asked for "some" of the reasons why he left (cf C1);
d Features 2b, 2c and 2d are confirmed;
eAnswers given are high level and wide enough to encompass subsequent claims;
f Address questions understood as permanent address.
4 (Opportunities to explain alleged omissions)
aNo opportunity ever provided to applicant to explain alleged omissions;
bNo notice that reasoning as to omissions was ever contemplated against him;
cPositive findings by delegate / SHE[V] interviewer of narrative consistency, including specifically as to matters rejected by IAA.
5By contrast, the SHEV process expressly sought a comprehensive narrative history.
6 The content of the alleged incident was inherently traumatic.
7 There was no "arrival interview" conducted in this case.
AS 35, which is referred to at AS 51(a), is set out above. I have explained above why I am not persuaded that the matters set out in that paragraph compel a conclusion that the Audio was not considered. Those matters essentially relate to specific details of how the evidence was given at interview, together with the applicant’s perspective on how those details should be interpreted. The fact that the IAA did not set out the features of the Audio relied upon in precise detail in its decision does not warrant a conclusion that the details contained within the Audio were not considered.
The fact that there were deficiencies in the Written Record, and the applicant was asked to sign it, do not demonstrate illogicality or irrationality in the IAA’s treatment of the Audio. As considered above, in the face of issues with the Written Record, the most likely inference (in the absence of persuasive evidence to the contrary) is that the IAA simply relied upon the Audio as the more accurate record of the interview. From what was said at the resumed hearing, I did not understand the applicant to press that defects in the Written Record (as distinct from what was demonstrated by the Audio) meaningfully informed ground 2, in the event that ground 1 did not succeed.
I accept that some caution ought to attend a decision maker’s reliance upon answers given (or not given) in early interviews. So much was recognised in MZZJO. There are features of the present case that were capable of emphasising the need for caution. Although the interview in question was an “entry interview”, rather than an “arrival interview” (as considered in AYJ17), it still appears to have been the applicant’s first real opportunity to explain his protection claims. This was in circumstances that may well have been difficult for the applicant and in which many of the questions related to matters other than his protection claims. It was in circumstances where the warning in the “Important Information” section of the Written Record does not appear to have been translated to the applicant.
The questions asked in the Entry Interview (and answers given) were, to some extent, limited. The IAA’s assessment took place within the constraints of the review conducted under Part 7AA of the Act. This was in circumstances where no interview was conducted by the IAA, the applicant had not had a fulsome opportunity to discuss the IAA’s concerns at the earlier stage of the review and the IAA was minded to come to different views on certain evidence to the Delegate (notwithstanding that the Delegate had taken the opportunity of interviewing the applicant).
However, the desirability of caution in assessing evidence from early interviews does not mean that it is closed to the IAA to rely upon their contents. I would not infer that caution was not exercised by the IAA, simply because it was not referenced in a decision. In any event, there are indications in the IAA’s decision record in this case that it was conscious of the potential for difficulties in giving evidence to have affected the manner in which evidence was given. At [16] of its decision, the IAA expressed:
16.In assessing the applicant's evidence I have taken into account the difficulties of recall over time, the scope for misunderstanding in interpreted material, cross cultural communication issues, and the problems people who have lived through trauma may experience in presenting their story in a cohesive narrative including the applicant's post-SHEV interview submission that he suffered from fear and anxiety and that he was somewhat disturbed and confused in his mind. Nevertheless, having considered his overall evidence, I have serious concerns about the credibility of the applicant and the truthfulness of some of his evidence.
The fact that the warning on page 1 of the Written Record was not stated at the Entry Interview is not sufficient to demonstrate jurisdictional error: EBY17 v Minister for Immigration and Border Protection [2019] FCA 222 at [48] (Bromwich J). I accept the Minister’s submission that there is insufficient basis in this case for finding that the IAA was not aware of this circumstance, together with what occurred in the Entry Interview more generally, from listening to the Audio.
As has long been the case, whether or not reliance upon an early interview is relevantly open to a decision maker depends upon the particular reasoning employed in each case. In the present case, the IAA’s reasoning regarding the Entry Interview is set out above. For the reasons given under ground 1, I have found that the IAA’s interpretation of what occurred during the Entry Interview was open on the evidence (and, specifically, the evidence provided by the Audio).
I am not persuaded that it was relevantly closed to the IAA to have attributed to the difficulties it identified regarding the Entry Interview the significance that it did. Although caution ought to attend reliance upon omissions at such an interview, the IAA may rely upon inconsistencies in accounts, and omissions of potential significance, where this is open on the evidence. I accept the Minister’s submissions as to why it was open in this case.
The omissions relied upon by the IAA were of at least potential significance. In particular, the IAA was concerned that the applicant had not claimed during the Entry Interview that he had been arrested and detained over two days, during which he was tortured, before being released conditionally after payment of a bribe. The IAA was also concerned that the applicant had not raised his uncle being in the LTTE or being questioned about his whereabouts, or that two friends he had been arrested with were former LTTE cadres who had been through rehabilitation and were beaten in front of him.
It was open to the IAA to have regarded these matters as significant escalations of the applicant’s core claims, rather than a mere elaboration upon claims made at a level of generality during his Entry Interview. Although the applicant was initially asked about “some of the reasons” he left Sri Lanka (Transcripts, p 17), he responded by going into some level of detail regarding the bomb incident and what was said to have happened afterwards (Transcripts, p 17-18). This included information about being taken for investigation with his friends, his release and subsequent investigations “at homes and wherever they could find” them including questioning and threats that were said to have occurred. This is notwithstanding other, general references that were made by the applicant, such as to having “troubles from all sorts of parties” (Transcripts, p 19). It is acknowledging the fact that there may have been some fluidity in referencing the particular groups involved. The IAA’s concern in this regard appears to have been that the applicant had not previously claimed that certain events had occurred, without requiring precision regarding the affiliation of the perpetrators.
It was open to the IAA, within this context, to have been concerned that the applicant had not raised something as significant as being arrested and detained for two days, during which he claimed to have been tortured, in describing what had happened after the bomb incident. It was also open to the IAA to have been concerned that the applicant had not mentioned his friends’ LTTE involvement and beating when describing what had happened. Such a claim was of clear potential significance within the context of the applicant’s claims.
It was similarly open to the IAA to have been concerned that the applicant had not raised his uncle S being in the LTTE or being questioned about S’s whereabouts, at the Entry Interview. This was in circumstances where the applicant had been questioned about his family’s involvement in political groups or activities. Although the applicant contended that he had been describing his “immediate” family, the questioning was broader than this and this does not explain why the applicant described another uncle’s standing for election in response. As considered above, the applicant’s suggestion that he needed to clarify something appears from the Transcripts to have concerned the name of the party with which the uncle who had stood for election had been involved and not his evidence in this regard more generally (Transcripts, p 18).
I have set out above why the IAA’s interpretation of the evidence given regarding other discrepancies that were found, including regarding his address history, was an open interpretation of the evidence. I do not accept that it was illogical for the IAA to have considered or relied upon this nor upon other discrepancies in the evidence. This was in a context where the IAA was concerned that the applicant had not given an accurate depiction of his time in Sri Lanka. Although issues with some of the discrepancies might not, on their own, have been rationally capable of supporting the IAA’s credibility findings, I am not persuaded that the IAA was precluded from taking them into account as part of its overall assessment of the applicant’s claims. It was open to the IAA to have given reduced weight (at [20]) to letters provided by others where those accounts contained some inconsistencies with the applicant’s own claims. Such discrepancies were capable of suggesting limitations in the knowledge of the persons writing the letters, or inaccuracies in the evidence given.
In oral submissions, the applicant contended that the IAA unreasonably failed to consider exercising its powers under s 473DC of the Act to obtain new information regarding the omissions relied upon by the IAA. In this regard, the applicant relied upon submissions that have been considered above. The applicant emphasised that:
(a)there was no indication in the IAA’s reasons that it considered exercising its power in this manner;
(b)the IAA knew that the Delegate had not relied upon omissions that were relied upon by the IAA and had not raised them with the applicant at interview;
(c)if the applicant had been given the opportunity to explain the omissions, then he may have assuaged the IAA’s concerns;
(d)the IAA knew it did not have information regarding the applicant’s explanation for the omissions;
(e)the IAA knew that the Delegate, after interviewing the applicant, accepted as credible certain claims that were rejected by the IAA; and
(f)the IAA (if it considered the Audio) knew the context of the Entry Interview, as considered above (including, inter alia, that it was the first substantive interview regarding the applicant’s protection claims, the nature of the questions and answers, and the fact that the “Important Information” section on the Written Record had not been read).
For the reasons given above, I have not been persuaded that it was illogical, irrational or unreasonable for the IAA to have reasoned in the manner that it did. I have found that although some caution may have been warranted in relying upon omissions from the Entry Interview, there is insufficient basis for finding that the IAA did not exercise caution in so reasoning. I have found that it was nonetheless open to the IAA to have reasoned as it did in relation to the Entry Interview. I have not accepted the applicant’s submission that omissions relied upon by the IAA were necessarily to be regarded as mere elaborations upon claims made by the applicant of greater generality at the Entry Interview. This is considering the potential significance of the matters relied upon and the particular questions asked and answers that were given.
Within this context, I am not persuaded that it has been demonstrated that it was unreasonable for the IAA to have reasoned in the manner that it did without inviting further information from the applicant.
The ground of legal unreasonableness has a high threshold and falls to be considered in the applicable statutory context. Although it has been met in some cases, the results in those cases are explicable by the particular circumstances that were under consideration. For example, in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (which was relied upon by the applicant), the IAA did not merely decide the matter by reference to a new issue arising on the existing evidence, but decided the matter by reference to the principles regarding relocation to an entirely different area of the country. Such a determination depended upon information the IAA did not have. The IAA was therefore found to have unreasonably disabled itself from considering the question of relocation upon which the review had turned (at [82] per Robertson, Murphy and Kerr JJ).
In DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 (which was also relied upon by the applicant), the IAA was aware that the Delegate had accepted the applicant’s account through reliance upon demeanour at interview. The IAA subsequently rejected the applicant’s credibility without considering inviting the applicant to an interview in order to undertake its own assessment of his demeanour. Instead, the IAA relied upon inconsistencies the Delegate had indicated would not be given substantial weight. This approach by the IAA was found to have been legally unreasonable.
In the present case, the applicant’s credibility was (in some respects) in issue before the Delegate, even if particular concerns raised by the IAA were not. In any event, Part 7AA had no statutory counterpart to s 425 of the Act. It intentionally excluded the procedural fairness requirement for the applicant to be on notice of all issues on the review: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [75] per Reeves, Robertson and Rangiah JJ. Although the applicant may well have been able to provide relevant information on the issues in question if requested to do so, this does not mean that it was unreasonable for the IAA not to have sought such information. The IAA was not disabled from conducting a credibility assessment on the basis of the information before it, even if such an assessment might have been informed by additional information.
It is not apparent that particular reliance was placed by the Delegate or the IAA in this case upon demeanour. The Delegate does not appear to have actively discouraged the applicant from providing evidence on matters that were central to the IAA’s decision.
Considering the above, I am not persuaded that it was legally unreasonable for the IAA to have come to a decision without exercising the power under s 473DC of the Act to invite further information from the applicant. Given this, and that the IAA was not obliged to provide reasons for the non-exercise of the discretion, I am not persuaded it has been demonstrated that the IAA did not consider the exercise of this power. An intelligible reason for its non-exercise is apparent on the material before the Court. The IAA may simply have considered that it did not require additional information in order to complete its review. It has not been demonstrated that this approach was unavailable to the IAA within the context of the applicable statutory scheme.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 19 February 2025
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