Fuz17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 191
•4 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FUZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 191
File number: MLG 2881 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 4 March 2024 Catchwords: MIGRATION – where delegate found the Applicant’s claims plausible after seeing his injuries – where Authority heard only audio of the interview with the Applicant and did not interview him – where Authority found the Applicant’s evidence not credible - Held that it was unreasonable of the Authority to fail to exercise its powers under s 473DC of the Migration Act 1958 (‘Act’) to get and consider new information – error material and ground upheld.
MIGRATION – where Authority in considering the criteria in s 473DD(b)(ii) of the Act stated no reasons had been given as to why the information was not given earlier or was credible personal information and did not otherwise elaborate – Held that Authority failed to discharge its duty under s 473DD if the Act – held error not material in the circumstances.
Legislation: Migration Act 1958 (Cth) Part 7AA, ss 473DC, 473DC(3), 473DD, 473DD(b)(i), 473DD(b)(ii). Cases cited: ABH18 v Minister for Home Affairs [2020] FCA 620
ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90
BWE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1087
CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345
DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1218
DCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 857
DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15
EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 13 February 2024 Place: Melbourne Counsel for the Applicant: Dr McBeth Solicitor for the Applicant: Wimal & Associates Counsel for the Respondents: Mr Barrington Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2881 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FUZ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
4 MARCH 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.A writ of certiorari issue quashing the Second Respondent’s decision made on 19 December 2018 in Immigration Assessment Authority matter number IAA17/02693.
3.A writ of mandamus issue requiring the Second Respondent to rehear and determine the matter according to law.
4.The First Respondent pay the Applicant’s costs of the proceeding fixed in the sum of $8,371.30.
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 BLAKE:
INTRODUCTION
This is an application to review a decision of the Immigration Assessment Authority (‘Authority’). The Authority made its decision on 19 December 2017. The Authority affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the Applicant a Safe Haven Enterprise visa (‘visa’) (Court Book (‘CB’) 338).
For the reasons that follow, I have decided to allow the application for review.
BACKGROUND
The Applicant is a Sri Lankan national. The Applicant arrived in Australia on 8 June 2013 as an unauthorised maritime arrival (CB 283). He applied for the visa on 18 November 2016 (CB 250). The Applicant’s claims for protection were set out in a statement dated 9 November 2016 (CB 90-94).
On 6 April 2017 (CB 258), the Applicant attended a Protection Visa interview (‘PV interview’). On 12 May 2017, the delegate refused to grant the Applicant the visa (CB 280).
On 17 May 2017, the decision of the delegate was referred to the Authority for a fast-track review of the delegate’s decision under Part 7AA of the Migration Act 1958 (Cth) (‘Act’) (CB 295). Pre-hearing submissions and Country Information were submitted by the Applicant’s legal representative on 5 June 2017.
On 19 December 2017, the Authority affirmed the decision not to grant the Applicant the visa (CB 338).
The Applicant filed an application for review in this Court along with a supporting affidavit on 29 December 2017. At the hearing before me, the Applicant relied on an Amended Application (‘Application’) dated 29 January 2024 and an outline of submissions dated 29 January 2024. The Minister filed a Court Book and relied on an outline of submissions dated 6 February 2024.
THE APPLICATION
At trial, only Grounds One and Four of the Application were pressed. Grounds Two and Three were not pressed.
Ground 1
The first Ground of Review in the Application is:
1.The IAA unreasonably failed to exercise or consider exercising its discretion to get new information under s 473DC of the Migration Act.
Particulars
a)The applicant narrated his experience of torture to the delegate during his protection visa interview including showing the delegate his foot where his toenail had been removed by his torturers.
b)The IAA listened to the audio of the protection visa interview but was unable to see the applicant's injuries or the demeanour of the applicant during the interview.
c)The inability of the IAA to see the applicant's torture injury meant that a key part of the applicant's evidence in support of his claims for protection was not before the IAA.
d)The IAA had the ability to remedy that flaw by exercising its discretion to invite the applicant to an interview under s 473DC(3).
e)The IAA did not exercise its discretion to invite the applicant to an interview and there is no evidence that it considered doing so.
f)The IAA found at [21].“The applicant did not present this evidence in a natural or credible manner in my view.”
g)The IAA acted unreasonably in making an adverse finding based in part on the applicant's demeanour when the IAA did not have the opportunity to observe the applicant's demeanour.
h)The IAA acted unreasonably in failing to exercise its discretion to invite the applicant to an interview to enable it to observe the physical evidence of the applicant's injury and/or to observe the applicant's demeanour.
The submissions of the parties revealed an issue between them as to whether the Authority made the same finding as that made by the delegate, in respect of the Applicant’s claim to have been subjected to torture. The Applicant submitted that the Authority did not accept his claim to have been tortured, and says this differed from the delegate’s acceptance of that claim. The Minister submitted that on a proper reading of the delegate’s reasons, the delegate did not accept that the Applicant had been tortured.
The reasons of the delegate are set out in the Court Book. Those reasons disclose, inter alia, the following:
(a)the delegate set out the Applicant’s claims for protection. Those claims included the following:
(i)on one occasion when he was arrested by the Criminal Investigation Department (‘CID’), the Applicant was taken to the fourth floor of the CID building in Columbo and detained for 15 days during which time he was interrogated and asked about his links with the LTTE; and
(ii)when the Red Cross found out about the Applicant’s detention, he was transferred to the Satham Road CID office where he was detained for forty-five days, tortured and interrogated;
(b)under ‘Part 4 - Findings of Fact’, when referring to information from Amnesty International about arrests, abductions and the like, the delegate stated ‘On this point I accept it is plausible that the CID could have arbitrarily detained the Applicant, based on false allegations, and interrogated him at the CID Colombo 4th floor building and also at the CID Satham Road Building in the period 1995-1996’;
(c)the delegate stating ‘I accept that the following claims are plausible:
…
(i)On one occasion when he was arrested by the Criminal Investigation Department (CID) the Applicant was taken to the fourth floor of the CID building in Columbo and detained for 15 days during which time he was interrogated and asked about his links with the LTTE;
(ii)When the Red Cross found out about the Applicant’s detention, he was transferred to the Satham Road CID office where he was detained for forty five days, tortured and interrogated’; and
(d)in applying the refugee criterion and considering the ‘Applicant’s profile as an imputed LTTE cadre in Sri Lanka detained by the CID in Colombo’, the delegate stated ‘I accept the Sri Lankan authorities may have received an allegation from [reference to individual omitted] against the Applicant that he was involved with the LTTE as a supplier. However they did not have clear evidence the Applicant was an LTTE cadre, contact, supplier, sympathiser or affiliate when they detained and interrogated him at the CID 4th floor office in Colombo’. The delegate also stated that ‘the Applicant did not provide a detailed testimony that he suffered mistreatment that would amount to torture in detention…’.
The Minister made submissions about the delegate’s reasons. He submitted that the delegate did not make a finding that the Applicant had been tortured. In making that submission, the Minister relied on what is set out in the matters I have summarised at 11(d) above, and the statement by the delegate that the Applicant had not provided detailed testimony of mistreatment or torture. The Minister also made the alternative submission that the delegate ‘did not accept the applicant’s account of torture wholly or substantially on the basis of its assessment of demeanour’. In advancing this submission, the Minister relied on the matters I have summarised at paragraph 11(b) above.
It is clear the delegate made findings that the Applicant had been held and interrogated. Whether the delegate found the Applicant was tortured is somewhat less clear. When the reasons are read as a whole, however, I am inclined to the view that the delegate made the finding that the Applicant had been tortured. The delegate was aware the Applicant had advanced two claims of being detained, one on the fourth floor of the CID building in Colombo, and one in the Satham Road building. The delegate accepted the Applicant had been ‘interrogated’ at both places. Critically, the delegate made an express finding as to what occurred at Satham Road, stating that it was plausible that the Applicant ‘was transferred to the Satham Road CID office where he was detained for forty five days, tortured and interrogated’. That express finding must be given weight. The passages relied on by the Minister particularly those referred to in paragraph 11(d) above, may be taken as a critique of some aspects of the Applicant’s evidence, but they do not rise to the level of prevailing over the express finding made by the Authority. In short, when read as a whole, I prefer the express finding over the inferences the Minister asked the Court to draw.
The next issue is whether the finding of torture by the delegate was based wholly or substantially on the delegate’s assessment of the manner in which the Applicant gave evidence. The Minister contends that there is nothing in the delegate’s reasons to indicate acceptance of the Applicant’s claim of torture was based wholly or substantially on the manner in which the Applicant gave evidence. Indeed, the Minister says that the delegate’s reasons disclose that any finding as to detention and interrogation was based upon Country Information from Amnesty International. In that respect, the Minister refers to those matters summarised in paragraphs 11(b) and 11(c) above. The Applicant in contrast, contends that it must be inferred that the delegate looked at the demeanour of the Applicant in arriving at its conclusion. In advancing that submission, the Applicant contends that the present matter is almost identical to what the High Court considered in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (‘ABT17’).
In ABT17, a delegate of the Minister found the Applicant’s evidence plausible and consistent with Country Information. In that matter, the delegate refused the application for the protection visa based on other Country Information. On review, the Authority listened to an audio recording of the referred applicant’s evidence and departed from the delegate’s findings as to the central part of an account given by the Applicant. The High Court held that the Authority ‘will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment and of the manner in which that account was given’ (at [25]).
I have reviewed the High Court’s reasons in ABT17 and reviewed the judgment of Bromberg J that gave rise to that appeal (ABT17 v Minister for Immigration and Border Protection [2019] FCA 613). In that matter, the delegate found the appellant to be ‘plausible’ (at [3], reasons of Bromberg J). This finding was arrived at following the delegate’s request for the appellant to take his shirt off, and where the appellant showed the delegate some scarring on his back (at [19], reasons Bromberg J). Bromberg J stated at [ 21] ‘it must be accepted that the delegate accepted as ‘plausible’ the appellant’s evidence given at interview that he had been physically assaulted, including sexually tortured’. In that context, Bromberg J observed at [24] that:
It seems to me that the IAA must have been aware that, in the interview with the appellant, the delegate had the opportunity to observe the appellant’s demeanour. Not to merely listen to a tape of the interview (as it appears the IAA did) but to see and evaluate the physical manifestations which must have accompanied the evidence given by the appellant. The IAA must have recognised, including because of the issues addressed by the evidence, that the delegate’s findings as to the plausibility of the appellant’s evidence, and in particular the evidence given about the alleged sexual torture, may have been, at least in part, based on the delegate’s positive assessment of the appellant’s demeanour. In those circumstances, it may well be thought that a reasonable decision-maker would not have made credibility findings contrary to those made by the delegate without considering whether or not the powers given to the IAA under s 473DC should be exercised, including for the purpose of inviting the appellant to attend for an interview so that the IAA could conduct its own assessment of the appellant's demeanour.
It is important to record that while Bromberg J made the observations above, he ultimately found the error by the Authority in the circumstances of that case was not material.
In the present matter (like in ABT17), the delegate found it ‘plausible’ that the Applicant had been tortured at Satham Road. It did so after examining the Applicant’s injuries. In dealing with the Applicant’s claims to have been detained, held and tortured, the delegate referred to the Applicant’s claims in his Entry Interview, set out its questioning of the Applicant and the answers he gave, and then considered Country Information, including from BBC Sinhala and Amesty International (CB 286 – 287 under the heading ‘Findings of Fact’). It was only after considering all of this information that the delegate found, firstly, that the CID detained and interrogated the Applicant (CB 287) and secondly, the Applicant was tortured at Satham Road (CB 288).
As noted above, the Minister submits that the finding of torture was not made wholly or substantially on the basis of demeanour, but instead was made based on Country Information including information obtained from Amnesty International. In my view, that is an unduly narrow reading of the reasons of the delegate. It is plain that the delegate considered a range of matters in reaching its conclusion (see paragraph above), including the account given by the Applicant and the manner in which that account was given. It is also plain in my view that when the delegate found the Applicant’s claim to be ‘plausible’, that finding (like in ABT17) must have been based on its own assessment of the manner in which the Applicant gave his evidence, and also after having seen and evaluated the physical manifestations of the Applicant’s injuries. I therefore do not accept the Minister’s submissions. In my view, the delegate’s reasons are based upon information it found ‘plausible’, which must have included an assessment of the manner in which the Applicant gave his evidence, and an evaluation of the physical manifestation of his injuries.
It is then necessary to consider what the Authority did in the present matter. At paragraph [21] of its reasons, the Authority stated:
In detention the applicant said he was stripped naked with only his pants left, he had to bend down and go under the table, they hit him on his back and pulled out one of his nails. The applicant pointed to the big toe on his left foot. The applicant did not present this evidence in a natural or credible manner in my view.
It is plain from the paragraph set out above, that the Authority did not accept the Applicant had been tortured, and that it did not accept that because ‘the applicant did not present this evidence in a natural or credible manner in my view’. That finding by the Authority was made in circumstances where the delegate found the Applicant’s claim of torture to be ‘plausible’. It was also made in circumstances where the Authority had not had the opportunity to see the manner in which the Applicant’s evidence was given or the injuries he sustained. The finding by the Authority was also made in circumstances where the Authority was listening to an oral recording of the Applicant’s evidence through an interpreter.
In my view, the Authority acted unreasonably by not inviting the Applicant to attend an interview in order to gauge the manner in which he gave his evidence for itself, and to evaluate the physical manifestations that accompanied his evidence, before deciding to reject his account in the circumstances of this case. As I have stated, when the delegate found the Applicant’s claim to be plausible, that finding (like in ABT17) must have been based on its own assessment of the manner in which the Applicant gave his evidence, and an evaluation of his physical injuries. As the High Court stated at [30] in ABT17:
To be clear, the breach of the reasonableness condition by the Authority lay not in evaluating the review material for itself to arrive at a different assessment of credibility than did the delegate, but in failing in the circumstances to use the powers at its disposal to get and consider new information in order to supplement the review material so as to place itself in as good a position to assess credibility as had been the delegate.
I agree with the comments of the High Court. They apply with equal force in this case.
There is then the question of whether the error made by the Authority was material. The Minister submitted, in effect, that the error was not material because any assessment by the Authority of the credibility the Applicant’s claims did not have a significant bearing on the Authority’s decision to affirm the delegate’s decision. The Minister submits that the Authority’s decision to affirm the decision was not based on whether the Applicant was detained, interrogated or tortured, but rather on Country Information about significantly changed conditions in Sri Lanka. In advancing that submission, the Minister pointed to paragraphs [28]-[33] of the reasons of the Authority. Those paragraphs are as follows
28. I accept the applicant lived for a period in Colombo in 1996 and 1997 and that he worked in the textile industry selling imported Tamil clothing to Tamil businesses. I accept he was detained on a number of occasions as a Tamil from the North (Jaffna) as a result of government ‘search and round up operations’ because of security measures resulting from the conflict of the civil war. The applicant has given quite contrasting figures as to the number of times he was detained 15 times (entry interview) and 26 to 27 times (PV interview). I am more inclined to accept the lesser figure and consider he embellished this figure to strengthen his claims for protection. I accept the authorities may have questioned him about his work and why he collected money from other Tamil businesses. I accept he was visited by the International Red Cross whilst detained overnight or for a couple of days. Given the applicant was released after each detention I am not satisfied the applicant was of any ongoing interest to the authorities and they found no connection between him collecting monies owed and raising money for the LTTE.
29. Whilst I have accepted the applicant was detained a number of times over 20 years ago in general search and round up operations because of his Tamil ethnicity and being from Jaffna in the North of Sri Lanka and thus suspected of having links to the LTTE, I am not satisfied the applicant would experience similar treatment on his return to Sri Lanka in 2017. According to the Australian Department of Foreign and Trade (DFAT) during the civil conflict more Tamils were detained under emergency regulations and the Prevention of Terrorism Act (PTA) than any other ethnic group. Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces during the conflict and the Rajapaksa Government.
30. The overall situation for Tamils in Sri Lanka has improved markedly since the end of the conflict in 2009. The security situation in the north and east has improved dramatically since the end of conflict, with greater freedom of movement and a reduction [sic] military’s involvement in civilian life. Military checkpoints on major roads leading to the north and east were removed in 2015 and there are no restrictions on travelling to the north and east. DFAT advises that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government. Members of the Tamil community have also described a positive shift in the nature of interactions with authorities; they feel able to question the motives of, or object to, monitoring or observation activities.
31. A 2017 UK Home Office report states even returnees who have had a previous connection with the LTTE are able to return to their communities without suffering ill-treatment. The police interest, if any, is not in any previous involvement with the LTTE, but on whether the person has committed a criminal act. In post-conflict Sri Lanka, an individual's past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government’ Those most at risk are former LTTE members who are a threat, or perceived to be, because they have a significant role in relation to post-conflict Tamil separatism. ‘Significant role’ meaning those in the LTTE’s former leadership (combat or civilian) and/or former members who were suspected to have committed terrorist or serious criminal acts during the conflict, or to have provide [sic] weapons or explosives to the LTTE. The applicant has not claimed to be involved with post-conflict Tamil separatism and there is no evidence before me that he has been politically active whilst living in either Australia or India. The independent evidence does not support the contention that a Tamil who has spent a significant period of time in countries with large Tamil diaspora faces a real chance of harm for that reason.
32. I note the Sri Lanka Constitution provides that no citizen should be discriminated against on the grounds of their race, religion or language; despite this, ethnicity along with communal issues surrounding language and religion is still a source of division in Sri-Lanka. Positive developments are taking place in Sri Lanka to lessen these issues. In 2012, the Trilingual Policy was introduced, which provides the right to communicate in Sinhala, Tamil or English throughout Sri Lanka. Monolingual Tamil speakers, including in the Northern Province, can have difficulty communicating with the police, military and other government authorities. DFAT assesses that these practical difficulties are the result of a lack of qualified language teachers, the disruption to civilian life caused by the conflict, and the legacy of earlier discriminatory language policies rather than official discrimination.
33.DFAT assesses that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination as there are currently no official laws or policies that discriminate on the basis of ethnicity, including in relation to access to education, employment or access to housing. However, DFAT further assesses that societal discrimination on the basis of ethnicity can occur but it doesn’t specify discrimination against ordinary Tamils. Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since Sirisena came to power in 2015. There are a number of Tamil political parties including, with the largest coalition of parties operating under the Tamil National Alliance (TNA) which currently has 16 members of parliament and its leader is also the leader of the National Opposition. As noted above the monitoring and harassment of Tamils in their day to day live has decreased significantly under the current government.
[footnotes omitted]
In considering the issue of materiality, paragraph [36] of the reasons of the Authority is also relevant. That paragraph is as follows:
Based on this evidence, and having regard to my earlier findings as to the applicant’s profile, I am not satisfied the applicant faces a real chance of any harm because of his Tamil ethnicity and originating from Jaffna in the north of Sri Lanka in former LTTE controlled areas and having been outside Sri Lanka in Tamil diaspora rich countries.
In my view, paragraph [36] is critical to question of materiality and whether there was a realistic possibility of a different outcome. The conclusion at paragraph [36] makes it clear that the Authority is not satisfied the Applicant faces a real chance of harm because of its ‘earlier findings as to the applicant’s profile’. The profile the Authority had for the Applicant was, inter alia, that he was a person detained on a number of occasions as part of ‘government search and roundup operations’, released after each period of detention (at [28]). The profile was not that the Applicant had been subjected to torture, because the Authority had disregarded that claim on the basis it lacked credibility. It is in my view, at least possible that the outcome could have been different had the Authority invited the Applicant to an interview and heard from him directly, prior to making findings about his claims, which in turn would have informed the profile the Authority ultimately attributed to the Applicant. In my view, therefore, the error made by the Authority was material.
For all of these reasons, I would uphold Ground One of the Grounds of Review.
Ground 4
The fourth Ground of Review in the Application is:
4. The IAA failed to discharge its duty to review the new information provided by the applicant against the criteria in s 473DD of the Act.
Under this Ground of Review, the Applicant takes issue with the treatment by the Authority of new information provided by him concerning an individual (‘P’). In his Entry interview conducted on 17 May 2014 (CB 2-25), the Applicant claimed, among other things, that P ‘dobbed me in’ and that P ‘is very influential. He is very powerful. I fear harm from him’. In a submission to the Authority dated 5 June 2017, the Applicant provided the following information about P:
The decision maker seems to disregard the importance and influence of the man called P. The main issue with P was that he was also involved in illegal activities (apart from whatever legal activities he ran) and had the ear of the police/CID, as some of them were directly connected to him. Sri Lanka is a third world country where bribery and corruption is rife within the police force and persons such as P cannot survive unless they have the support of the police. Likewise, P was also aligned with the para military groups which were around at the time and they were connected to the CID. In this case, in an effort to get the upper edge, P has laid a false claim against the applicant, namely that he was a fund raiser for the LTTE and that resulted in his arrest and subsequent detention. One has to realise that this incident occurred in 1996, when the civil war between the Sri Lankan government and the LTTE was at its height and there was no end in sight. The military and all other Sri Lankan government forces were on high alert and the authorities were clamping down on Tamils and any suspicious activity was dealt with by the authorities. The applicant was in dreaded fear of P and that is why he asked his Manager to make arrangements to send him to India to get away from this man P and the influence he wielded in Sri Lanka.
The Authority dealt with the new information submitted by the Applicant at paragraphs [4]-[5] of its reasons as follows:
4. On 6 and 8 June 2016 the IAA received a submission from the applicant’s representative and signed by the applicant. This submission mostly consists of legal argument as to why the delegate’s decision was wrong and to that extent it may be considered as argument rather than information, which I have noted. The submission also reiterates a number of the applicant’s claims presented to the delegate.
5. The submission also states that P (who the applicant feared) was also aligned with paramilitary groups. This is new information. In the applicant’s Protection visa (PV) application and at his PV interview, the applicant only claimed that P was connected to the CID and the police. P was discussed in detail at the applicant’s PV interview and I consider the applicant was on notice and had the opportunity to provide this information prior to the delegate’s decision being made. No explanation has been provided as to why this information could not have been provided prior to the delegate’s decision being made and no reasons have been given as to why it may be considered credible personal information. The applicant has not satisfied me that the requirements of s.473DD(b)(i) or s. 473DD(b)(ii) are met in relation to this information. Furthermore, it is not apparent that there are any exceptional circumstances to justify considering this information.
There is a dispute as to what constituted the new information. The Minister submitted, based on what the Authority said at paragraph [5] of its reasons, that the new information was only that P was aligned with paramilitary groups. The Applicant submitted that the new information was broader than that, for example, that there was no reference in the Entry Interview to P having the ‘ear’ of the Police and the CID.
It is not possible to resolve this issue, which seemingly emerged during the hearing for the first time. It is apparent when one looks at the reasons of the delegate, that information was provided to the delegate during the PV Interview. The transcript of the PV Interview is not before the Court. For present purposes, I have accepted that the new information is as described by the Authority in paragraph [5] of its reasons (that P was aligned with paramilitary groups), and that the Authority nevertheless took into account the other information as submissions.
I turn then to the Applicant’s principal submission. That submission is that the Authority failed to discharge its duty under section 473DD of the Act as contemplated by the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (‘AUS17’). The High Court (Kiefel CJ, Gageler, Keane and Gordon JJ) described the duty this way at [6]:
For that binary outcome of the application of s 473DD to be workable, s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria.
It is clear from paragraph [5] of the reasons that the Authority assessed the new information against the criteria set out at section 473DD(b)(i). The Authority expressly referred to the Applicant’s prior claims in respect of P at the PV interview, and noted that the Applicant was on notice and had the opportunity to provide information prior to the delegate’s decision being made. The Authority also stated that ‘no reasons have been given as to why it may be considered credible personal information’.
Whether the Authority considered the criteria set out in section 473DD(b)(ii) is less clear. In assessing this issue, a question arises as to whether the concerns of the Authority relating to the late provision of the new information also should be taken as the Authority assessing whether the new information is credible personal information for the purposes of section 473DD(b)(ii).
The Minister submits that a failure to explain the late provision of information is a matter that may bear upon whether information is credible under section 473DD(b)(ii). That proposition may be accepted at a general level, but in my view, it is not what occurred here when the reasons of the Authority are examined. The first part of paragraph [5] of its reasons of the Authority after the words ‘prior to the delegates decision being made’ are clearly directed to a consideration of the criteria in section 473DD(b)(i). The only consideration of the criteria in section 473DD(b)(ii) are the words ‘and no reasons have been given as to why it may be considered credible personal information’. The use of the word ‘and’ in the beginning of that sentence delineates between the Authority’s consideration of the criteria in (b)(i) as opposed to the criteria in (b)(ii).
That being the case, the only consideration of whether the criteria in (b)(ii) are satisfied is the statement by the Authority that ‘no reasons have been given as to why it may be considered credible personal information’. By reasoning that way, the Authority in my view abdicated its duty to assess whether the new information was credible. The Authority limited its enquiry to whether reasons had been given as to why the information was credible. In doing so, it did not assess the new information against the specified criteria as required by AUS17. There is certainly no consideration in the reasons given by the Authority as to whether the information is personal to the Applicant or capable of being believed: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150, [75] (Mortimer and Jackson JJ). Accordingly, by approaching the matter as it did, the Authority fell into error.
There is then a question as to whether the error is material. On this issue, the Applicant directed me to the decision of Colvin J in DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15 at [49]-[52] (‘DPT17’). There Colvin J stated ‘it was only the extent of the failure to conform to s 473DD that had to be material in order for there to be invalidity in the actions that purported to discharge the statutory duty imposed by the provision… If the correct application of s 473DD could realistically have resulted in the consideration of the new information by the Authority then there has been invalidity in the discharge of the statutory duty’.
In contrast to the above, the Minister contended that it is necessary for the Court to assess whether, had the Authority considered the new information as part of its substantive decision, there was a realistic possibility of a different decision. In support of this submission, the Minister cited a number of authorities including but not limited to CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345 at [39]-[41] (Markovic J) (‘CDJ19’) and DCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 857 at [112]-[117] (Raniagh J): ABH18 v Minister for Home Affairs [2020] FCA 620, at [45] (Charlesworth J); DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1218 (Anderson J); EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657, at [58] (Wheelahan J); BWE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1087, at [36]-[38] (McKerracher J).
The apparent divergence in the authorities as to the question of whether an error made in the application of section 473DD to a particular set of circumstances is material was put before a Full Court in AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 (‘AZT22’). There, Banks-Smith and Jackson JJ first considered whether the error there was material, applying the standard in cases such as CDJ19. Banks-Smith JJ and Jackson found the error in that matter was material when the standard in CDJ19 (and other cases relied on by the Minister) was applied. In light of that finding, Banks-Smith and Jackson JJ then considered the standard in DPT17 and concluded that the error would have been material. They therefore declined to determine whether DPT17 was correct.
In this matter, I am inclined to accept the Minister’s submissions in respect of how materiality is to be assessed when considering an error made in the application of section 473DD. The weight and number of authorities from judges of the Federal Court suggest that is the approach that should be followed. The Full Court in AZT22, when given the opportunity to rule on the issue, declined to do so and importantly, applied the standard the Minister now asks me to apply.
Applying that standard, I find that the error made by the Authority was not material. The relevant information that would have been factored into the substantive review was that P was aligned with paramilitary groups. Had that information (or indeed the other information the Applicant asserted is new information) formed part of the substantive review, there is not a realistic possibility of a different decision. That is because the Authority rejected the Applicant’s claims of any feud between him and P in its entirety. By way of illustration, the Authority:
(a)at [22] noted that the ‘Applicant’s evidence at times seemed to develop in response to the delegate’s line of questioning and I am not satisfied the applicant was able to coherently or convincingly explain why P, a man of some influence and power, would be so fixated with the applicant, a clothing salesman’;
(b)at [24] stated it had ‘serious concerns about [the Applicant’s] claims of his ongoing dispute with P… I accept that as a businessman, the applicant may have experienced pressure from competitors but I find it far-fetched that someone of P’s purported importance and connections would spend so much time and energy pursuing the applicant’;
(c)at [27] stated ‘I have not found the applicant persuasive or convincing in his responses as to why he would be of such interest to P…I find it implausible that the applicant would still be of interest to P however, given I reject the applicants claim of a feud with P in its entirety, I also do not accept this threat from P of 2012…. I am not satisfied the applicant has a well-founded fear of harm on the basis of a relationship with his former business competitor P on his return to Sri Lanka now or in the foreseeable future’; and
(d)at [51] rejected ‘the applicants claim in its entirety that he feared harm from P, a business competitor, and that the applicant spent any extended period of time in detention because of P’s connections with the CID and that P made false allegations against him that he was fundraising for the LTTE, that the applicant left Sri Lanka in 1997 because of threats from P and that P again threatened him in 2012’.
In summary then, in respect of this ground, I conclude that the Authority made an error in its application of section 473DD to the circumstances of this case, however that the error was not material. Accordingly, this ground of review fails.
CONCLUSION
I have upheld Ground One of the Grounds of Review for the reasons set out earlier. The appropriate course is to make orders quashing the decision of the Authority and remitting the matter to the Authority to determine in accordance with law. I will make orders that affect.
Given the Applicant was successful, I award costs of $8,371.30 to the Applicant.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 4 March 2024
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