FEDERAL COURT OF AUSTRALIA

ASB17 v Minister for Home Affairs [2019] FCAFC 38

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

3.    The parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs referred to in paragraph 2 by 4 pm on 21 March 2019.

4.    In the absence of any agreement having been reached by 4 pm on 21 March 2019, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from orders made by the Federal Circuit Court on 31 August 2018: ASB17 v Minister for Immigration & Anor [2018] FCCA 2391. There are two grounds of appeal, both essentially concerned with the same conduct by the Immigration Assessment Authority: namely the approach it took to two letters and a set of post-hearing submissions, all of which were sent to the Minister’s delegate before the delegate made a decision on the appellant’s protection visa application.

2    The appellant contends that:

(a)    the Authority erred by unreasonably failing to consider whether to exercise its discretion under s 473DC of the Migration Act 1958 (Cth) (“the Act”); or by unreasonably failing to exercise that discretion; and alternatively

(b)    the fact-finding by the Authority about the two letters and post-hearing submissions was not open to the Authority, in the sense of being either irrational in a way which affected its jurisdiction or legally unreasonable.

Background

3    The appellant arrived in Australia as an unaccompanied minor, aged approximately 15 years. The way that he claimed to have left Sri Lanka and the circumstances in which he claimed to have left it are relevant to the appellant’s grounds of appeal. In his first statutory declaration dated 5 September 2013, the appellant relevantly stated:

I was very young during the war and my parents don’t like to talk to me about it. After the war ended, the Sri Lankan Army established bases throughout our region. Since the end of the war, there have been problems for us, and soldiers have continued to abduct people, rape women and target wealthy Tamils. All Tamil families are suspected of association with the LTTE and treated poorly by the army.

A few months before I left Sri Lanka, my cousin - the son of my brother’s elder brother, [REDACTED] - was abducted when he was returning from his evening classes. When he was released we found out that he had been beaten and tortured. He wasn’t given food for days. His kidnappers asked him for my uncle’s phone number in order to demand money. At first he refused to give the phone number, but he gave it to them after he was beaten. The kidnappers demanded 30 crore rupees. I don't know how much my uncle was able to pay. He is a goldsmith.

The night before the night I left Sri Lanka my father asked me to pack some clothes and get in a van he had borrowed. I didn’t know where or why I was going. My father told me he had received a phone call from a man saying that his son would be killed and he would have to pay a ransom. He said he was very worried and didn’t want to lose me.

Although I don’t know the details, I think they may have targeted my father because he works in a jewellery shop so he would seem to be a rich Tamil and thought he would pay a ransom because I am his only son. Many Tamils in our community have been kidnapped in similar circumstances.

Leaving Sri Lanka

My father made all the arrangements for me to leave. I fund out that he used his savings and pawned some of my mother’s jewellery to pay. We travelled overnight to Colombo. The next night I was picked in a van heading for Galle and I said goodbye to my father. In Galle we boarded a small boat and then a bigger boat.

If I were forced to return to Sri Lanka

Because the threat against me was made to my father, I do not know all the details, but from what I know I am afraid that I would be kidnapped if I returned to Sri Lanka by the people who threatened my father.

I speak to my family every few days. They don’t normally talk to me about the problems they have there, but my father did tell me that he was threatened again after I left.

4    In a second statutory declaration dated 12 January 2016, the appellant said:

Since I left Sri Lanka in late August 2012, I have been told by my father that after my departure, the people pursuing me called him. The first call was about two weeks after I left. They demanded that my father tell them where I am, they asked for my details, but my father didn’t say anything. My Dad told me that the people were Sinhalese but spoke some Tamil. We are not sure which group they belong to.

About 3 months later, these people called again and asked my Dad about my whereabouts. My Dad said they were loud and angry, and that he hung up on them. Because of these threatening telephone calls, he got a different phone number.

5    These statements elaborated on, but were consistent with, what the appellant had said in his entry interview:

1.    Why did you leave your country of nationality (country of residence)?

Are you seeking Australia’s Protection? Yes

In the town where I lived people have been threatened and my dad wants me to be safe, so he sent me here - Australia.

RE-INTERVIEW-12 JAN 2013

When I said people- I didn’t just mean people, they were my relatives and family.

Q- was there anything that specifically happened to you, that made your dad send you here to Australia?

A- Not directly to me, but one of my uncle’s sons and another uncle’s son have been kidnapped and that is why my dad was worried about my safety.

Q- when were they kidnapped?

A- at the start of 2012, I am not entirely sure of the date or the month.

Q- have they come back home?

A-they were kept for about 1.5-2 months then released.

6    The rest of the appellant’s answers to questions on the entry interview form concerning how he came to Australia, and who was involved, indicate clearly that his father had made all the arrangements for him. The appellant expanded a little in the following way in the entry interview form:

13. When and how did you leave (country of origin) and who travelled with you?

I took about 20 days.

I travelled for 2 days in Sri Lanka with my dad, we travelled by car. We paid a driver. We went to Colombo. I did not know the people. My Dad was to go back home. I have not spoken to him. 15 days on water, 3 days at Cocos Island.

Where did your boat depart from to Travel to Australia?

There was no jetty, we were on a beach. They took us in a small boat.

How did you get to the boat? (Departure point, time, description of journey).

Travelled with my Dad. I was not aware of place names, times or dates.

RE-INTERVIEW- 12 JAN 2013

We drove from Vavuniya to Galle, we stayed overnight in Colombo.

Q-what happened when you got Galle?

A- my dad stayed the night with my in Colombo and then the next day a van came and picked me up, there were about 10-12 others in the van. And we drove to Galle. When we got out of the van we were next to the sea. We were taken by small boat to the big boat. We were on the boat not 15 days, but 17 or 18 days and then arrived at Cocos Island.

7    When asked about why he chose Australia and why he feared going back to Sri Lanka, the answers recorded on the form as having been given by the appellant were:

17. Why did you choose Australia as your destination?

Q - Do you know why dad chose Australia as the country to send you to?

A - Because it was the only opportunity that came up.

…

18. What do you think will happen to you if you return to your country of nationality (residence)?

As soon as I go back, they will know that I am back, they will attempt to kidnap me because I left and came back.

Q - who is ‘they’?

A – It’s hard to say who they are, if we knew that it wouldn’t be such a problem

The delegate’s process and decision

8    The appellant applied for a protection visa (a Safe Haven Enterprise (Subclass 790) Visa or SHEV) on 21 January 2016.

9    The appellant’s claims can be summarised in the following way, this summary being taken from the appellant’s written submissions, omitting the evidentiary cross-references, and omitting one aspect of the summary which relates to the factual matters in issue on the appeal:

The Appellant’s father had been shot during the civil war in Sri Lanka. Following the war, the Sri Lankan Army (SLA) had established a strong presence in the Appellant’s home region. Abuses perpetrated against Tamils by the Sri Lankan authorities and associated entities continued in this region, and included abductions. Tamils in the Vavuniya area were suspected of having strong links to the LTTE.

A few months before the Appellant left Sri Lanka, his cousin was abducted. The cousin was beaten, tortured and starved, and his father was forced to pay a ransom for his release.

The Appellant’s father was subsequently threatened by Sinhalese people, who indicated that the Appellant would be killed if his father did not pay a ransom. The Appellant’s father arranged for the Appellant to leave Sri Lanka and seek asylum in Australia. The Appellant’s father told the Appellant that he was called and threatened by the same people two weeks after the Appellant left, and again three months later, prompting him to change his phone number.

…

The Appellant further claimed that because he was a Tamil, the authorities would not adequately protect him from abduction or like persecution, and that the government still did not have control over many killings and kidnappings in Sri Lanka. Through his then representatives, he provided country information concerning the persecution of Tamils and the imputed affiliation of Tamils from Vavuniya with the LTTE.

The Appellant claimed that he may face persecution on return to Sri Lanka as a failed asylum seeker who had left Sri Lanka unlawfully; and that the prospect of persecution was exacerbated by his not having a national ID card and by the 2014 data breach.

10    The appellant was interviewed by a delegate in relation to his protection visa application on 28 April 2016. During that interview, as the Authority’s reasons record at [12], the appellant told the delegate that he did not know if his father was ever threatened in person, but the appellant speculated that perhaps his father had been but did not tell the appellant so as not to scare him.

11    After the interview with the delegate, by an email dated 13 May 2016, the appellant’s representatives forwarded to the delegate three documents. One of those documents was a set of post-hearing submissions. In those submissions, the appellant’s representatives relevantly stated:

1.2.    As the Applicant was a child when he left Sri Lanka, and based on the evidence he gave at the interview, we submit that his family have not divulged all of the details of the problems they experienced in Sri Lanka. This includes, for example, any family involvement in the LTTE and the circumstances surrounding the shooting of his father prior to his birth. Despite this, we submit that the applicant gave frank answers and presented with a demeanour that added to his credibility.

…

1.4.    The Applicant gave evidence that he was still wanted in Sri Lanka and that he fears he would be abducted upon his return. The Applicant has sought evidence from his father of the risks he would face if he was returned to Sri Lanka. On his behalf, his father obtained letters from the local Member of Parliament and Justice of the Peace attesting to this fear. We enclose these letters with this submission.

…

1.5.    At the Interview, Mr [REDACTED] gave evidence as to the threats his father received by phone. It was put to Mr [REDACTED] that he had not mentioned these specific threats in his entry interview. We submit that Mr [REDACTED]’s response to this adverse information was reasonable:

I was fifteen years old at that time, I didn’t know much, I was scared…eighteen days I was in the sea…

1.6.    We note that the PAMS direct officers to place primary consideration on claims given at the protection visa interview. They expressly state that discrepancies can arise between the entry interview and the refugee status determination process due to the timing of entry interviews, the state of shock or anxiety of the interviewee, the lack of understanding as to which claims are relevant and the fact that entry interviews, which are often very short, are not conducted for the purpose of obtaining or investigating asylum claims.

(Footnotes omitted.)

12    The post-hearing submissions also contained a considerable amount of country information about the circumstances in Sri Lanka which the appellant’s representatives submitted he would be likely to face on his return.

13    As paragraph 1.4 of the submissions foreshadowed, two documents were attached to the submissions, which on their face originated from Sri Lanka. The first was a letter from a Justice of the Peace in Sri Lanka which relevantly stated:

I certify that I know Mr. [REDACTED], date of birth 1997-02-21, native of Vavuniya, stayed at [REDACTED], and his parents.

I know that he was under interrogation and questioned by the unknown armed persons. It was reported me by his parents to give protection to their son. I investigated and I could not assist to Mr. and Mrs. [REDACTED], parents of Mr. and Mrs. [REDACTED] as it was Para Militant works.

I asked them to come with me to Police to lodge a complaint; they were panic and fear hearing my request. The unknown armed person has already made a threat that if they sought police assistance they would be shot killed. They begged to help their son from killing by unknown armed persons who often visited their home.

As their son Mr. [REDACTED] faced life risk, he took flee from Sri Lanka crossing the rough seas of Indian Ocean and Pacific Oceans. I was made understand that he is under search of unknown armed persons and he is staying in foreign country for his protected life.

Parents of Mr. [REDACTED] sought my assistance recently that they are under continually life threats to produce their son Mr. [REDACTED] to the unknown armed persons.

I am well aware that his returning to Sri Lanka would be the last day in his life.

I request the authority where there now Mr. [REDACTED] is staying to give protected life as his life is danger in Sri Lanka.

This letter is issued at the request to confirm the above

14    The second letter on its face was from a Member of the Sri Lankan Parliament for the district from which the appellant came. It relevantly stated:

This is to certify that I know Mr. [REDACTED], date of birth 1997-02-21, native of Vavuniya, stayed at [REDACTED], educated in Vavuniya up to GCE (O/L) and his family are known to me well as my constituents.

While he was student in Vavuniya, he was supporting Tamil Struggles and our party for the election works and other propaganda against the killings of Mullivaikkal. Sri Lankan Authority and Para Militant group harassed him. He was surveying under death threats in Sri Lanka and he was unable to complete his education.

Due to conflict and confrontation he faced in Sri Lanka, he had to take flee from Sri Lanka. Now, he is staying in a foreign country for the protection of his life.

Now his parents Mr. and Mrs. [REDACTED] often visit my office and they are reporting that they are under harassing from unknown armed persons to produce their son above named Mr. [REDACTED]. It was reported me that on their last visit, Mr. and Mrs. [REDACTED] family was under heavy death threats to make their son Mr. [REDACTED] come to Sri Lanka as Mr. [REDACTED] is wanted to them. Parents of Mr. [REDACTED] were badly assaulted want of Mr. [REDACTED].

Youths in his condition, though new government formed for good governance is still facing life threats. There are nearly 28 Tamils returned from foreign countries have been arrested at the Airport on their arrival.

In this situation, my opinion is that if Mr. [REDACTED] is returning to Sri Lanka, he will face a bad consequence in Sri Lanka and his surviving would be a question.

I request the authority where there Mr. [REDACTED] is staying now, to give him protection as his life is risk as far as I collected information about Mr. [REDACTED]

I issued this letter to confirm the above material facts authority concern.

15    Both letters were dated 18 January 2016, which did not sit entirely easily with the chronology of events and what was said in paragraph 1.4 of the post-hearing submissions, being a date some three months prior to the appellant’s interview with the delegate. However, as the appellant’s counsel submitted, this was not a matter of concern identified by the Authority in its reasons.

16    On 22 September 2016, the delegate refused to grant the appellant a SHEV. Although the delegate accepted much (but not all) of the narrative given by the appellant about what had happened to him and his extended family in Sri Lanka, the delegate did not accept that the appellant’s fear of serious harm or persecution were he to return to Sri Lanka was well-founded, essentially because of the findings the delegate made about improvements in the circumstances in Sri Lanka after the civil war.

17    The final material fact concerning the delegate’s decision, of relevance to the appellant’s claim on the appeal, is that the delegate did not refer to the post-hearing submissions, nor to either of the two letters in support of the appellant’s claims. This omission, the appellant submitted, was one of the factors that should have been weighed by the Authority in deciding whether or not to exercise its power under s 473DC.

The decision of the Authority

18    The delegate’s decision to refuse the appellant a SHEV was referred to the Authority for review on 28 September 2016. The Authority did not interview the appellant, nor did it correspond with the appellant concerning its review. That is, it did not exercise, as a matter of fact, any of the powers in s 473DC.

19    Unlike the delegate, the Authority did examine the post-hearing submissions and the two letters. In its decision, the Authority accepted as credible much of the appellant’s narrative of what happened to him before he left Sri Lanka. It accepted as plausible that the appellant’s cousin had been kidnapped and held for ransom in 2012, and it accepted that it was plausible that the appellant’s father had subsequently received threats about the appellant himself, including after the appellant had left Sri Lanka.

20    However, the Authority was not satisfied that the father was targeted for reasons other than his family’s perceived wealth, and found that the identity of the individuals who had made threats against the appellant’s father, and had abducted the appellant’s cousin, was unknown.

21    As to whether the appellant’s fear of harm or persecution in Sri Lanka in the future was well-founded, the Authority found that it was not satisfied the appellant would be perceived to be a member, sympathiser or supporter of the LTTE, or that he faced a real chance of harm because he was a young Tamil male from the Northern Province. The Authority was also not satisfied that the appellant faced a real chance of harm on the basis of not having a national identification card (which the Authority accepted he did not have), or because his father had been shot in the past, or because of the appellant’s status as a failed asylum seeker who had departed Sri Lanka illegally. The Authority also rejected the appellant’s claim to fear harm on the basis of a data breach which had occurred in Australia in 2014. The Authority stated it had considered these matters cumulatively, yet it nevertheless decided to affirm the decision to refuse the appellant a SHEV.

22    The Authority made similar findings in relation to the complementary protection criteria in s 36(2)(aa) of the Act. It found (at [60]) there were not “substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm”.

23    From [51]-[59] in its reasons, the Authority explained why it had reached its conclusion that the appellant would not face a real chance of serious harm if returned to Sri Lanka (for the purposes of the assessment under s 36(2)(a) of the Act), including making findings about the risks faced by the appellant in terms of being questioned by Sri Lankan authorities at the airport and possibly charged for illegal departure from Sri Lanka, and the possibility the appellant might be detained for up to several days in prison in relation to such charges. This aspect of the Authority’s findings is not relevant to the appellant’s grounds of appeal.

24    On the question of the relevance and probative value of the letters from the Justice of the Peace and the Member of the Sri Lankan Parliament, the Authority made the following findings (at [11]-[13] and [17] of its reasons):

In a post interview submission to the delegate, the applicant’s former representatives claimed that the applicant has a perceived association with the LTTE that goes beyond his residency links supported by the abduction of his cousin and the direct threats his father received. As I have not accepted that his cousin was abducted by the Sri Lankan authorities, or that his father received threats from the Sri Lankan authorities or that they were targeted for any reason other than criminal extortion due to their perceived wealth, I do not accept that the applicant is perceived to be associated with the LTTE by the Sri Lankan authorities.

The applicant submitted a letter from a Sri Lankan Justice of the Peace (JP) dated 18 January 2016. In part, the letter corroborates aspects of the applicant’s original claims which I have accepted. However, the letter also claims that the applicant was under interrogation and questioned by unknown armed groups and that these armed groups often visited their home. It also claims that the applicant’s parents recently requested assistance from this JP as they were under continual threats to produce their son. I note that the applicant has not claimed that he was under interrogation or questioned by unknown armed groups before he left Sri Lanka or that these armed groups ever visited his home or that the applicant’s parents had received further threats since 2012. During the protection visa interview the applicant said he did not know if his father was ever threatened in person but speculated that maybe his father did not tell him so as not to scare him. However, if that had been the case, I do not consider it plausible that they would have then sent a letter to him divulging this information. Given this, I have concerns about these aspects of the letter which I consider are inconsistent with the applicant’s claims and I have, therefore, given little weight to this letter in my assessment.

The applicant has also submitted another letter from a Member of Parliament (MP) from Vavuniya District also dated 18 January 2016. The letter claims that, when the applicant was a student, he was supporting “Tamil struggles” and “our party” in their “election works and other propaganda against the killings of Mullivailkal”. I note the applicant has not made any such claims. The letter also claimed that his parents often visit the MP’s office reporting that they are being harassed by unknown armed persons to produce the applicant and that they were badly assaulted. As with the JP Letter, given the inconsistency of these claims with the applicant’s claims, I have also given this letter little weight in my assessment.

…

Given the above country information and that I am satisfied that the applicant and his family are of no further interest to the group who threatened them in 2012, I am not satisfied that, if the applicant were to be returned to Sri Lanka, there is a real chance that those who previously threatened him would abduct or harm him in any way or that he would be kidnapped, or otherwise harmed, by any other group due to his family’s perceived wealth because his father works in a jewellery store.

25    It is these findings, and the approach behind them, which formed the basis of the appellant’s judicial review application to the Federal Circuit Court.

The Federal Circuit Court’s decision

26    By an amended application dated 15 February 2018, the appellant sought judicial review of the Authority’s decision. There were originally three grounds of review. After the decision of the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 the first ground of review was not pressed. The second and third grounds of review remain in substance the same as the two grounds of appeal in this appeal.

27    The Federal Circuit Court rejected both grounds of review. It found that findings made by the Authority about the inconsistencies between some of the claims made in the letters and the appellant’s claims as made in the documents constituting his protection visa application were reasonably open to the Authority: see [43] of the Federal Circuit Court’s reasons. It rejected the contention that he was unrepresented before the Authority, and that this was a factor weighing in his favour in respect of the exercise of the discretion under s 473DC. The Federal Circuit Court relied on the post-hearing submissions prepared on the appellant’s behalf by the Refugee Advice and Casework Service, and a file note in evidence which recorded that the appellant had “replied in the affirmative” when asked if he had a migration agent. It made a positive finding that there was “no evidence before this court to suggest that [the appellant] was not represented before the IAA”: see [29] of the Federal Circuit Court’s reasons.

28    The Federal Circuit Court distinguished the factual circumstances of the appellant from those in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 on the basis that:

In this case, the IAA assessed the evidence that the applicant put forward in support of his claim. That assessment is not in itself a matter which must be put to the applicant for further comment. In contrast, in CRY16, the IAA considered a matter which had not been raised by or, importantly, with the applicant. That failure in the context of the IAA considering an internal relocation, was the basis of the court’s finding that there had been a jurisdictional error.

The appellant’s argument in this Court

29    The appellant contended that the Authority’s assessment of the two letters, and the aspects of the post-hearing submissions dealing with them, was “dispositive”, because it:

… led to the rejection of the claim that the Appellant’s family had been subject to ongoing threats and harassment, and ultimately the finding that the Appellant did not face a real chance or risk of serious or significant harm from the individuals who had abducted his cousin and threatened his father in 2012.

Ground 1

30    On ground 1 of the amended notice of appeal, as we understood the appellant’s argument, the appellant relied on the cumulative effect of a number of factors, of which he submitted a reasonable decision-maker in the Authority’s position would have been aware, and which would have affected the deliberations of a reasonable decision-maker about whether to exercise the power in s 473DC. Those factors were said to be:

(a)    the appellant had consistently qualified his narrative with statements to the effect that he had an incomplete knowledge of events leading up to him fleeing Sri Lanka, because his parents did not tell him very much. The two letters were critical to supplement the appellant’s narrative, and his claims (and which, we infer, the appellant contends should have been explored further at a hearing).

(b)    since the delegate had failed to consider the letters and the post-hearing submissions at all, the “concerns” identified by the Authority had not previously been put to the appellant for comment, and he had not had an opportunity to be heard in relation to them.

(c)    contrary to the Federal Circuit Court’s finding, the true situation was that the appellant was unrepresented before the Authority and had expressed confusion about its processes.

(d)    much of the contents of the letters (and the post-hearing submissions) supplemented or added to the appellant’s claims but did not contradict them.

31    There was an alternative way in which the appellant put ground 1 at the hearing, albeit this formulation did not clearly arise on the amended notice of appeal. He contended it was legally unreasonable for the Authority not to have exercised the power in s 473DC and invited the appellant to give new information. The appellant relied on the same factors as he did for the “failure to consider” aspect of ground 1. This alternative aspect was mentioned but not developed in written submissions, and not formally abandoned. The Minister contended that the appellant did not give any submission or new information to the Authority, despite that opportunity having been clearly identified to him, nor was the Authority obliged to put the appellant “on notice” of any inconsistencies it might have identified in the material on the review. The Minister submitted it was “unsurprising, and ‘intelligible’” that the Authority did not exercise its power to get (unspecified) new information from the appellant – especially since the appellant had not specified what new information could or might have been given.

Ground 2

32    The appellant’s rationality or unreasonableness argument about the Authority’s fact-finding centred on the finding of the Authority at [12] of its reasons about the letter from the Justice of the Peace, and the following passage in particular:

[The letter] also claims that the applicant’s parents recently requested assistance from this JP as they were under continual threats to produce their son. I note that the applicant has not claimed that he was under interrogation or questioned by unknown armed groups before he left Sri Lanka or that these armed groups ever visited his home or that the applicant’s parents had received further threats since 2012. During the protection visa interview the applicant said he did not know if his father was ever threatened in person but speculated that maybe his father did not tell him so as not to scare him. However, if that had been the case, I do not consider it plausible that they would have then sent a letter to him divulging this information. Given this, I have concerns about these aspects of the letter which I consider are inconsistent with the applicant’s claims and I have, therefore, given little weight to this letter in my assessment.

(Emphasis added.)

33    While the appellant’s counsel accepted there was a rational foundation for the Authority’s other findings at [12] and [13] in particular about the two letters, it was this finding in bold that counsel submitted was not open, or was irrational or legally unreasonable. Counsel clarified that by “not open” he did not mean to raise a “no evidence” argument, but rather to say that the Authority’s reasoning was either irrational or legally unreasonable. Counsel clarified that this ground identified, at least in part, an error of the kind described in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611.

34    The finding in bold was said to be irrational or legally unreasonable because, on the material before the Authority (and which it had accepted), it was clear that the appellant had sought further information from his father after the interview with the delegate, for the express purpose of dealing with some of the matters raised by the delegate during that interview. In other words, as we understood the argument, the appellant had encouraged and asked his parents to divulge further information to him. This, the appellant contended, was clear from paragraph 1.4 of the post-hearing submissions. For the Authority to make the finding it did displayed no rational connection with the evidence before it. Alternatively, counsel for the appellant submitted, the finding was legally unreasonable, because there is no intelligible justification in the evidence or material before the Authority for the conclusion it reached.

35    The same submission was made about the Authority’s finding at [13] of its reasons, in similar terms, concerning the letter from the Sri Lankan Member of Parliament.

The Minister’s response

36    As to ground 2, the Minister submitted the Authority’s finding was explicable on the evidence, and should not be seen as anything more than a finding that the two letters should be given little weight. The letters, and the Authority’s findings about them, were not used to make adverse findings about the appellant’s credibility. Rather, the letters were found by the Authority not to add anything probative to the appellant’s claims.

37    On ground 1, the Minister submitted the appellant had not discharged his onus of proving the Authority failed to consider whether to exercise the power in s 473DC. The Minister also submitted that even if this onus was found to be discharged, in the circumstances, the Court should not conclude that no reasonable decision-maker would have refused to consider whether to exercise that power, particularly in circumstances where there was no request by the appellant to provide any new information to the Authority.

Resolution of the appeal

38    Before turning to the grounds, it is necessary to say something about some of the language used by the Authority, which featured in argument on the appeal, and the way that language is used in reasoning of decision-makers such as the Authority to determine whether a person’s narrative should be accepted as accurate and reliable. There are two aspects to identify: the language itself and its meaning, and the way what are described as “inconsistencies” might be used in a reasoning process. These matters are relevant because they are capable of affecting the rationality and legal reasonableness of the reasoning of a decision-maker such as the Authority.

The language of “inconsistency”

39    On this appeal, and despite what the Full Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 said at [22]-[28], the Minister’s submissions at some points continued to use the term “inconsistent” and “inconsistency” as something of a global label. The Authority’s reasons also tend to do this. The difficulty with this approach, as the Full Court observed in AVQ15 at [27], is that such labels can mask the need for deeper analysis.

40    The adjective “inconsistent” means, according to the Macquarie Dictionary:

1. lacking in harmony between the different parts or elements; self-contradictory.

2. lacking agreement, as one thing with another, or two or more things in relation to each other; at variance.

3. not consistent in principles, conduct, etc.

4. acting at variance with professed principles.

5. Logic incompatible

41    The Oxford English Dictionary defines the adjective in the following way:

[of related things] Not consisting; not agreeing in substance, spirit, or form; not in keeping; not consonant or in accordance; at variance, discordant, incompatible, incongruous;

[of a single thing] Wanting in harmony between its different parts or elements; self-contradictory; involving inconsistency.

42    Differing accounts of the same event may not be “inconsistent” at all. One may be more detailed than another. One may have different emphasis. One may include a particular incident that another does not. Differences in accounts may arise from the kinds of factors to which the Full Court referred in AVQ15 at [24] and [25].

43    On the other hand, differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person’s credibility, or (perhaps more likely) reliability. Or they may not. Simply (and incorrectly) attaching the label “inconsistent” to differing accounts of an event, or differing narratives, does not make them so. Where an adverse finding is made on the basis of differences in accounts, it will usually be necessary to properly discharge the fact-finding task for a decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of the narrative or account given by a person.

The effect of inconsistencies

44    Some true “inconsistencies” may be objectively irrelevant to the fact-finding of a decision-maker. Some may be explicable, or excusable. Some may be critical to fact-finding. Some may reflect on the credibility or reliability of an applicant, and some may not. As the Full Court said in AVQ15 at [28], the decision-maker’s task requires her or him to “assess the significance of that inconsistency and the weight to be given to it”. Again, simply attaching the label “inconsistency” and moving immediately from the label to an adverse finding of credibility or reliability, may not be a rational or legally reasonable approach.

45    It is also worth recalling that complete consistency in a narrative or an account of events, especially traumatic events, or events occurring some time ago, may in some circumstances be probative of a lack of credibility. There may come a point at which a person’s narrative of past events is too complete, making no allowance for the imperfections of human observation and memory, and that may in itself demonstrate lack of reliability or credibility. This is a further illustration of why, as the Full Court said in AVQ15, where a person has been required to give more than one account or narrative of events, often separated by considerable periods of time and circumstances, care needs to be taken in weighing and assessing the probative value of various accounts.

Ground 1

46    The Minister does not concede there was a failure by the Authority to consider whether or not to exercise the power in s 473DC. Therefore, the first step on which the appellant must succeed is to prove the Authority failed to consider whether or not to exercise its power under s 473DC.

47    The appellant did not point to any positive evidence to suggest there had been such a failure. The Court was asked to infer the failure from the absence of anything in the Authority’s reasons which referred to consideration of the exercise of power.

48    In this case, we do not consider the Authority’s reasons are entirely silent on this issue. There is an indication in the Authority’s reasons that it may well have considered whether to exercise the power. That indication is found in [3] of its reasons, where the Authority states:

No further information was obtained or received.

(Emphasis added.)

49    The use of the word “obtained” may suggest the Authority member turned her mind to whether or not to exercise the power in s 473DC. In the absence of any other evidence to support the inference for which the appellant contends, and in the absence of concession by the Minister, we consider the way in which [3] is expressed is a sufficient basis to conclude the appellant has failed to prove it is more likely than not that the Authority did not give any consideration to whether or not to exercise the power in s 473DC.

50    Even if we were wrong in reaching this conclusion, any failure to consider whether or not to exercise the power in s 473DC was not, in the circumstances of this review, legally unreasonable. The factors identified by the appellant, taken singly or cumulatively, are not of such a nature as to obviously call for such consideration. The omission of a finding by the delegate about the letters did not lead to any significant unfairness to the appellant, even if that be relevant to legal unreasonableness. They were letters put forward on his behalf by his representative, and had already been the subject of submissions. Coming as they did after the delegate interview, we find the post-hearing submissions were made on the assumption that they would inform how the delegate assessed the letters. The Authority was in no different position. It was able to read and consider the letters and the post-hearing submissions in the same context as that available to the delegate. The appellant’s youth at the time of the events, and his dependence on his parents’ knowledge, were factors of which the Authority was plainly aware. It is difficult to understand how the appellant’s lack of representation (even if this be assumed in his favour, contrary to the finding of the Federal Circuit Court) meant a decision-maker acting reasonably would invariably consider whether or not to interview the appellant. Consideration of whether or not to conduct an interview is likely to depend on matters more specific to the claims made, the narrative given by a person and what happened before the delegate.

51    It can be accepted that some decision-makers might well have considered whether or not to interview the appellant, or ask him to provide new information in a written form. However, on the assumption we are wrong about the first step and the Authority did not engage in any such consideration here, the circumstances of this review are not such that it can be said there was no intelligible justification for that failure, nor that any decision-maker acting reasonably would certainly have considered whether to do so.

52    For completeness, we address the appellant’s submission that the Federal Circuit Court was incorrect to find (at [29] of its reasons) there was no evidence the appellant was unrepresented in the review before the Authority. This was put forward to the Federal Circuit Court, and to this Court, as one of the factors said to indicate to an Authority acting reasonably that it should consider whether to exercise its powers under s 473DC.

53    There was no evidence before this Court whether the appellant was in fact represented during the Authority review. It does not matter for the determination of ground 1. What matters on the appellant’s argument (if anything) is what the Authority’s understanding was at the time it could have chosen to exercise its powers under s 473DC. The evidence goes as far as establishing that the Authority officer who had a telephone conversation with the appellant shortly after he lodged his review believed he had representation. Her file note relevantly records:

I explained further, if he wishes to submit any new information that was not before the Department or a submission as to why he disagrees with the Departments decision, he has 19 more days to supply this. I asked if he had a migration agent, he said he had. I suggested he give the IAA Acknowledgement letter to his lawyer to read.

54    The Authority officer’s understanding is made clear in the last sentence of this extract.

55    The evidence does not disclose whether she passed on that understanding to the Authority member who decided the appellant’s review. There is simply an absence of evidence about what the Authority member knew, or did not know, about the state of the appellant’s representation. The Court might infer, as the appellant’s counsel submitted, that the Authority knew there was no representative on the record for the appellant because the Authority’s procedures had not been complied with. That is the most that could be drawn by way of inference. Against that is the evidence that at least an Authority officer believed the appellant had some assistance from a lawyer or agent. There are references in the Authority’s reasons to the appellant’s “former representatives” and to his “representatives”, despite these references being to the post-hearing submissions, so there are some apparent contradictions in the Authority’s reasons themselves. Given the state of the evidence, it is not possible to make a positive finding the appellant was unrepresented and the Authority knew that to be the case. Therefore, it is not possible to identify the appellant’s asserted lack of representation as a factor which any reasonable decision-maker would have taken into account in considering whether to exercise powers under s 473DC.

56    This point takes the appellant’s arguments on appeal no further.

Ground 2

57    Although aspects of the appellant’s written submissions might have suggested otherwise (see, for example, [31]), counsel for the appellant accepted at the hearing of the appeal that there were parts of the two letters which went beyond the narrative given to that point by the appellant. In particular, the letters made a number of statements about the appellant’s activities in Sri Lanka before he left, and about what had happened to him before he had left, none of which had been part of the narrative the appellant had given to that point in support of his claims for protection.

58    As the Minister submitted, the Authority did not rely on those differences to make any adverse credibility findings against the appellant. Rather, by attaching “little weight” to the letters, what the Authority did was to discount or disregard their contents, in terms of the additional factual assertions made in them. That had three consequences for the Authority’s fact-finding. First, the Authority did not accept – by reason of the additional assertions in the letters – the appellant was of any interest to the LTTE (see [11] of the reasons). This finding is not challenged on appeal. Second, the Authority did not add to the claims it was assessing any claim based on the appellant having been active in Tamil politics before leaving Sri Lanka, or having been interrogated by unknown groups, or the Sri Lankan authorities, before he left Sri Lanka ( see [12] and [13] of the reasons).

59    Third, and critically to ground 2 of the appeal, the Authority did not rely on the letters as probative of the contention made in them (and in the post-hearing submissions) that the appellant’s parents had experienced harassment and threats on an ongoing basis after the appellant left Sri Lanka: see [12], [14] and [15] of the reasons.

60    The impugned sentence in [12] of the reasons (which we have identified in bold at [32] above) was not the only justification for this approach, even if it be accepted this finding was carried through in [13] of the Authority’s reasons to the second letter. The Authority also relied on the existence of differences between the appellant’s narrative and the contents of the letters as one justification for not giving them any weight. This is an example, a rational and reasonable one, of the way in which a decision-maker might weigh variations in accounts in material before her or him, and determine which she or he finds more likely. Here, that is what the Authority did, and it found the appellant’s own narrative to that point to be more likely. That narrative did not expressly involve claims that his family had continued to receive threats and to be harassed, despite him saying in his first statutory declaration that he spoke to them every few days. While he also said they didn’t speak much about any difficulties during those calls, it was a matter for the Authority to find as facts whether that was because there were no ongoing difficulties, or because his parents were withholding information from the appellant. The Authority clearly considered it was the former explanation, and not the latter. That approach was open to it. There is nothing irrational or legally unreasonable in that reasoning process.

61    In its impugned reasoning, the Authority compared how the appellant had described his parents’ approach to disclosing to him the truth of the situation they (and he) faced, and the fact of his parents seeking out and providing more detailed information about this to him once he was in Australia. It would have been one rational approach to see that difference as explicable because the appellant had specifically requested more information as part of the process of trying to secure a protection visa and explicable because it could be inferred he told his parents why he needed more detailed information. That was not the approach the Authority took.

62    The Authority instead preferred to see the letters as incompatible with the appellant’s previous descriptions of how his parents kept information from him. It might be said that in the context as it was before the Authority, that was a view which showed little understanding of the predicament the appellant found himself in before the delegate, and what (it might be inferred) he was advised to do by way of seeking further information from his parents. However, we are not persuaded that the Authority’s approach can accurately be described as irrational. It was not beyond the bounds of reason for the Authority to take such a view, even if it showed little insight into the appellant’s situation. Nor do we consider it was a view that no decision-maker, acting reasonably, could have reached. It might not be the view most reasonable decision-makers would reach looking at the appellant’s circumstances, but we are not prepared to characterise the finding as devoid of any intelligible justification.

63    There is nothing that can properly be described as irrational, or legally unreasonable, in the Authority’s fact-finding about the two letters and the post-hearing submissions.

conclusion

64    The appeal should be dismissed. The appellant should pay the first respondent’s costs of the appeal, to be fixed in a lump sum. There will be directions made accordingly.

Associate:

Dated:    7 March 2019