FEDERAL COURT OF AUSTRALIA

BNV18 v Minister for Home Affairs (No 2) [2019] FCA 378

ORDERS

THE COURT ORDERS THAT:

1.    The appeal by the First Appellant be allowed.

2.    Insofar as the orders of the Federal Circuit Court of 27 July 2018 relate to the first appellant they be set aside and, in lieu thereof, the following orders are substituted:

(a)    an order in the nature of certiorari to quash the decision of the Immigration Assessment Authority made 6 March 2018 insofar as the decision relates to the First Appellant;

(b)    an order in the nature of mandamus requiring the Immigration Assessment Authority to re-determine according to law the application for review of the decision of the delegate of the First Respondent made 29 August 2017 to refuse to grant the First Appellant a protection visa; and

(c)    there be no order as to costs of the proceeding before the Federal Circuit Court.

3.    The appeal by the Fifth Appellant be dismissed.

4.    The parties have leave to make further submissions in relation to the appeals by the Second, Third and Fourth Appellants.

5.    There be no order as to costs in the appeal.

6.    The parties have liberty to apply in relation to costs, within seven days.

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

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    This is an appeal from a judgment of the Federal Circuit Court which dismissed the appellants’ application for judicial review of the decision of the Immigration Assessment Authority (the Authority) (see BNV18 & Ors v Minister for Home Affairs & Anor [2018] FCCA 2061). The Authority had affirmed the decision of a delegate of the Minister for Home Affairs (the Minister) not to grant the appellants Safe Haven Enterprise (subclass 790) visas. The first and fifth appellants, BNV18 and BOJ18, are citizens of Sri Lanka of Tamil ethnicity and Christian religion. They are husband and wife, and the second, third and fourth appellants (BOG18, BOH18 and BOI18) are their three children.

2    The first appellant’s appeal alleges that the Authority misconstrued and/or misapplied s 473DD of the Migration Act 1958 (Cth) (the Act) in deciding that it was not permitted to consider “new information” the first appellant provided to it. For the reasons I explain I consider the Authority fell into jurisdictional error as alleged, and the primary judge erred in failing to so find. The first appellant’s appeal should be upheld.

3    The fifth appellant’s appeal alleges that the Authority erred by failing to understand her evidence that she was raped by Sri Lankan Army (SLA) soldiers on three separate occasions, rather than on one, and in concluding from differences regarding the date of the alleged rape that her allegation was fabricated. For the reasons I explain I am not satisfied that the Authority misunderstood the fifth appellant’s evidence nor that it fell into error as alleged. I can discern no appealable error in the primary judge’s decision and it is appropriate to dismiss the appeal.

4    The second, third and fourth appellants do not assert a basis for an entitlement to protection which is independent from that of their parents, and their protection visa applications are made on the basis that they are members of the same family unit. Having regard to the fact that the appeal by the first appellant is upheld and the appeal by the fifth appellant is dismissed I will hear submissions from the parties as to the appropriate disposition of the children’s appeals.

THE FIRST APPELLANT’S APPEAL

5    This appeal concerns the proper application of s 473DD of the Act, which governs the circumstances in which the Authority may consider new information put forward by a referred applicant.

The factual and procedural background

6    The first appellant is a 35-year old male citizen of Sri Lanka who illegally left that country by boat in November 2012 and arrived in Australia in December 2012, along with the fourth appellant, his almost 7-year-old son, and members of his extended family. As an “unauthorised maritime arrival” he was at that time precluded from making a valid visa application. Subsequently the Minister lifted the bar and invited him and his family to apply for either a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV) (collectively, protection visas).

7    On or about 10 May 2017 the first appellant applied for a SHEV. He claimed that in Sri Lanka he will face a real chance of serious or significant harm now or in the reasonably foreseeable future on the basis of an imputed political opinion as an LTTE sympathiser, his Tamil ethnicity, his Christian religion, his being a Tamil from the east, his having illegally departed from Sri Lanka twice and/or his being a failed asylum seeker.

8    The first appellant claimed that his illegal departure from Sri Lanka in November 2012 was not the first time he had illegally departed the country. In his SHEV application he stated that he “was arrested and taken to court while attempting to leave Sri Lanka illegally”. He expanded on this at interview, recorded in the delegate’s reasons as follows:

In September 2012 he attempted to leave Sri Lanka with his mother and sister in law... They were captured by the Navy with many other people. They were produced in Trincomalee court two days after being captured. He pleaded guilty to departing illegally. His brother in law acted as a guarantor and signed as a surety to secure his release. He [was] supposed to attend another court hearing 2-3 months later but he left the country for the second time in November 2012. According to his brother in law an arrest warrant was issued for him because he did not attend the second court hearing. However, he does not have [any] documentary evidence of the arrest warrant.

9    On 29 August 2017 the delegate refused to grant the first appellant a protection visa.

10    The delegate’s decision was a “fast track reviewable decision” under s 473BB in Pt 7AA of the Act. Under s 473CA the Minister was required to refer the decision to the Authority as soon reasonably practicable, and the Minister did so on 1 September 2017. Section 473DB(1) required the Authority to review the delegate’s decision by considering the review material provided to it under s 473CB, without accepting or requesting “new information” and without interviewing the referred applicant.

11    Section 473DD provides:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)     was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)     it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

The Authority’s decision

12    On 19 September 2017 the first appellant and his wife provided a joint submission to the Authority which reiterated his claims, and made specific reference to the significance of the claim that he had twice illegally departed from Sri Lanka (the second illegal departure claim). The appellants attached to the submission a copy of a document entitled “Warrant of Arrest”, apparently issued under section 84 of the Administration of Justice Law by the Trincomalee Magistrate’s Court, carrying the stamp and signature of a Magistrate, and dated 5 February 2013 (the Arrest Warrant).

13    On 6 March 2018 the Authority decided that it was precluded by operation of s 473DD from considering the Arrest Warrant. The Authority affirmed the delegate’s decision to refuse to grant the first appellant a protection visa (the Authority’s decision).

The application to the Federal Circuit Court

14    On 27 March 2018 the appellants filed an originating application in the Federal Circuit Court seeking judicial review of the Authority’s decision. By an amended application filed on 22 June 2018 the appellants advanced 14 grounds of review, but only Ground 9 is relevant to the appeal. Ground 9 was in the following terms:

IAA erred in declining to consider the arrest warrant being new information on the basis that ‘the applicant had not satisfied’ IAA ‘as to either of the matters in s 473DD(b)’ [paragraph 6] when IAA had not actually considered s 473DD(b)(i), nor had considered s 473DD(a), and accordingly the decision declining to consider the arrest warrant was not based on a proper consideration of the relevant law.

15    Ground 9 challenged the Authority’s application of subs (a) and (b)(i) of s 473DD but did not, in terms, raise any claim in relation to subs (b)(ii). The primary judgment however shows that the argument under Ground 9 was not limited to arguments in relation to only s 473DD(a) and (b)(i).

16    Following a show cause hearing on 27 July 2018 the primary judge handed down reasons for judgment, dealing with Ground 9 at [10]-[15]. His Honour concluded at [13]-[17], as follows:

[13]    It is apparent that the Authority declined to receive the new information in reliance on both elements of s.473DD(b) of the Migration Act. The Authority did not consider whether there were exceptional circumstances for the purposes of s.473DD(a). As the Full Federal Court made clear in CQW17, the Authority does not fall into jurisdictional error simply by failing to consider subparagraph (a) when reliance is placed on subparagraph (b).

[14]    Section 473DD of the Migration Act imposes a statutory prohibition on the Authority considering new information. That prohibition applies unless there are exceptional circumstances that justify considering the new information and the new information meets one of the requirements of either s.473DD(b)(i) or (ii) of the Migration Act; ss.473DD(a) and (b) impose cumulative requirements.

[15]    The Authority’s reasoning above at [6] discloses that it engaged in substance with both ss.473DD(b)(i) and (ii) and that the applicant husband had not satisfied it of either matter, as required.

[16]    However, as the Full Court also made clear at [71]-[72] of its judgment in CQW17, there may be circumstances in which exceptional circumstances bear upon the consideration of subparagraph (b)(i) or (b)(ii). In the present case there were no exceptional circumstances for the Authority to consider. The arrest warrant was proffered to the Authority without comment. The warrant had been referred to at the interview with the Minister’s delegate but not provided at that time.

[17]    The Authority considered that circumstance. The Authority also took into account its difficulties with the document on its face. I perceive in this case no arguable case of jurisdictional error by the Authority in the manner in which it approached the question of the new information. Thus, no arguable case of jurisdictional error is disclosed by Ground 9.

17    The primary judge dismissed Ground 9, as well as the first appellant’s other grounds.

The appeal to this Court

18    On 3 August 2018 the first appellant applied to this Court for leave to appeal from the interlocutory judgment of the Federal Circuit Court, and the Court subsequently granted leave. The notice of appeal reiterates all of the grounds before the Federal Circuit Court, but the first appellant only relies on Ground 9 which does not in terms raise an argument that the Authority failed to give proper consideration to s 473DD(b)(ii).

19    However, the parties agree that whether the Authority misconstrued or misapplied subs (b)(ii) is also at issue in the appeal. I therefore proceed on the basis that Ground 9 of the appeal is as follows:

The IAA erred in declining to consider the arrest warrant being new information on the basis that ‘the applicant had not satisfied’ IAA ‘as to either of the matters in s 473DD(b) when it had not given proper consideration to either s 473DD(b)(i) or (ii), nor had considered s 473DD(a), and accordingly the decision declining to consider the arrest warrant was not based on a proper consideration of the relevant law.

Determination

20    The question in the first appellant’s appeal is whether the Authority misconstrued or misapplied s 473DD(a), (b)(i) or (ii) in deciding that it was precluded from considering the Arrest Warrant.

21    Paragraph 6 of the Authority’s decision represents the totality of its reasoning in relation to whether it was precluded from considering the Arrest Warrant by operation of s 473DD. In the first sentence of that paragraph the Authority said:

Attached to the applicant’s submission is a copy of a warrant of arrest. I consider this document to be new information.

There is no dispute about the Authority’s conclusion that the Arrest Warrant is “new information”.

22    In the following sentences of [6] the Authority expressed its view in relation to s 473DD(b)(i) (i.e. whether the Arrest Warrant was not, and could not have been, provided to the Minister or his delegate before the decision to refuse the visa). It stated:

This warrant is dated 5 February 2013, several years before the delegate’s decision. I note that it is claimed that the warrant was held by the applicant’s brother-in-law in Sri Lanka who provided the applicant with a range of documents prior to the SHEV interview but not this document. The matter of the warrant was also discussed at the applicant’s SHEV interview but not provided.

23    In the next passage the Authority expressed its view in relation to s 473DD(b)(ii) (i.e. whether the Arrest Warrant is credible personal information which was not previously known and, had it been known, may have affected the consideration of the first appellant’s claims). It stated:

I have concerns about the reliability of this document. The name and the address on the warrant are different to the stated name and address of the first applicant. I have considered the possibility that the name on the warrant is a transliteration of the first applicant’s name but the spelling is quite different. The warrant states that the reason for issue is ‘failure to attend the court’. The warrant does not identify the offence that the court attendance is relevant to, and it was apparently issued after the applicant arrived in Australia. The applicant has not provided any documentation to support his claim that he was charged with an offence that required a court appearance.

24    The Authority concluded by stating:

The applicant has not satisfied me as to either of the matters in s 473DD(b). I cannot consider this new information.

The Authority’s consideration of s 473DD(b(ii) - whether credible personal information

25    The first question raised by the appeal is whether, in deciding that the Arrest Warrant was not credible personal information which was not previously known and, had it been known, may have affected the consideration of the first appellant’s claims, the Authority misapplied or misconstrued s 473DD(b)(ii).

26    Some parts of that question are not in contest. It is plain that the Arrest Warrant was “not previously known” to the Authority; the first time the warrant was provided was under cover of the first appellant’s submission to the Authority. There is no real question that consideration of the warrant may have affected consideration of the first appellant’s claims. The Minister did not seek to argue that the Arrest Warrant, if accepted as genuine, could not have done so. Nor, in circumstances where the Arrest Warrant relates to the first appellant alone, can there be any question that it is “personal” information.

27    In deciding whether it was satisfied that the Arrest Warrant is credible information the Authority was required to engage in an “active intellectual process”: Tickner v Chapman (1995) 57 FCR 451 at 462-3 (Black CJ); WZAQU v Minister for Immigration and Citizenship (2013) 233 FCR 534; [2013] FCA 327 at [12] (Flick J); see also NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [46] (Hill J) and [212] (Madgwick J, Conti J agreeing). It was obliged to adopt a careful, fair and reasonable approach to assessing the credibility of the Arrest Warrant so as to avoid engaging in a “quest to disbelieve”, and to avoid irrationality or legal unreasonableness in approaching that assessment: AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227; [2018] FCAFC 133 at [24] (Kenny, Griffiths and Mortimer JJ).

28    The Minister argues that, on a fair reading of its decision, there is no proper basis to suggest that the Authority did not engage in an active intellectual process when determining whether the Arrest Warrant was credible information. The Minister argues that the Authority did not need to make an express finding as to whether the Arrest Warrant was genuine and that it was enough for the Authority to note its doubt about the document’s reliability before finding that subs (b)(ii) was not satisfied. In the Minister’s submission the first appellant’s explanations regarding the deficiencies on the face of the Arrest Warrant do not indicate that the Authority failed to engage in an active intellectual process or reveal any other jurisdictional error; they simply argue with the Authority’s reasons and seek merits review.

29    I do not accept the Minister’s submissions. The Authority’s reasons, read fairly and without an eye keenly attuned to the perception of error, show that in concluding that subs (b)(ii) was not satisfied, the Authority did not adopt a careful, fair and reasonable approach and did not engage in an active intellectual process directed at the document and its contents.

30    This can be seen in the relevant part of the Authority’s decision (at [6]). First, the Authority said:

I have concerns about the reliability of this document.

Notwithstanding the centrality of the Arrest Warrant to the first appellant’s claim to fear persecution if returned to Sri Lanka, the Authority did not make an express finding that the document was not credible information, and it went no further than to express a concern about its reliability. The phrase “concerns about the reliability of this document” is not apt to stand as an adjudication concerning the veracity of the serious claims of which the Arrest Warrant is said to be proof: see SZTQP v Minister for Immigration & Border Protection (2015) 232 FCR 452; [2015] FCAFC 121 at [52] (Nicholas, Robertson and Griffiths JJ); BTT16 v Minister for Home Affairs [2019] FCA 251 at [38] (Steward J). To decide that it was not satisfied that the Arrest Warrant was credible it was necessary for the Authority to go further than it did.

31    Next, the Authority said:

The name and the address on the warrant are different to the stated name and address of the first applicant. I have considered the possibility that the name on the warrant is a transliteration of the first applicant’s name but the spelling is quite different.

It is appropriate to take judicial notice of the fact that use of patronyms (i.e. use of the father’s first name as the second name of the children) by Tamils is widespread. The evidence shows that the first appellant and his family followed this practice as each of the first appellant’s children have taken his first name as their second or family name. The first appellant notes that the first name on the Arrest Warrant is his own, and argues that while the spelling of the family name is different to his, it starts with the same letter and it has the same or similar number of syllables. It could be added that, depending upon how it is pronounced, it would sound similar. The Authority’s finding that different spelling of the two names indicates that it could not be the result of transliteration difficulties again tends to show that the Authority skated over the issue. A difference in spelling is an archetypal example of a transliteration problem.

32    Next, the Authority said:

The warrant states that the reason for issue is ‘failure to attend the court’. The warrant does not identify the offence that the court attendance is relevant to, and it was apparently issued after the applicant arrived in Australia.

On its face the Arrest Warrant is a Magistrate’s Court form and the box marked “Particulars of alleged offence or reasons for issue of warrant” has been completed to state “Failed to attend the Court on [location redacted]”. A failure to attend court is the reason for the issue of the Arrest Warrant, both on the face of the document and on the first appellant’s account. The form does not require identification of the charge lying behind the requirement to attend court, and it is not clear what reason the Authority had for expecting this to be included. The warrant’s issue after the applicant arrived in Australia is also consistent with, rather than in tension with, his account. He says he was arrested when he attempted to leave in September 2012, was released and required to attend court again two to three months later. A warrant for failure to attend court could not have been issued until after this time. Again, the Authority’s reasons tend to show that it did not meaningfully engage with the document and what it purported to show.

33    Finally, the Authority said:

The applicant has not provided any documentation to support his claim that he was charged with an offence that required a court appearance.

That statement makes no sense. The Arrest Warrant is itself the document the first appellant put forward to support his claim that he had previously fled Sri Lanka, had been charged with doing so, had failed to attend court in relation to that charge and that there was an outstanding warrant for his arrest. The Authority’s statement can carry no weight in its assessment of the credibility of the warrant, and again tends to show the Authority did not give it genuine and active consideration.

34    It is also relevant to take into account the obvious errors in the Authority’s decision (at [21]) in relation to the second illegal departure claim, which reinforce the appropriateness of an inference that the Authority skated over the second illegal departure claim and did not take a careful, fair and reasonable approach or engage in an active intellectual process in relation to whether the Arrest Warrant was credible information. The Authority described the second illegal departure claim as a “new claim” (at [21]) and said:

…This failed attempt to flee is not mentioned in his arrival interview or SHEV application.

That was plainly incorrect. First, the record of the first appellant’s entry interview on 21 February 2013 records him as stating that he “was last detained 2 months before I left Sri Lanka”. On the timelines in his detailed statement, that can only have been when he was arrested in September 2012 for attempting to illegally depart Sri Lanka. Second, contrary to the Authority’s finding that he did not mention the second illegal departure claim in his SHEV application, the first appellant expressly said that he “was arrested and taken to court while attempting to leave Sri Lanka illegally” and he further detailed that claim in his SHEV interview.

35    Any benefit of the doubt the Authority might have been given on the question of whether it engaged in an active intellectual process or took a careful, fair and reasonable approach in deciding it was not satisfied that the Arrest Warrant was credible information is thereby forfeited: John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; [2003] HCA 50 at [5]-[6] (Gleeson CJ). As his Honour said in that case, this error about the second illegal departure claim is tantamount to a “thirteenth stroke of a clock: not only wrong in itself; but such as to cast doubt on everything that went before”. See FKO17 v Minister for Home Affairs [2019] FCA 98 at [64] (Wheelahan J).

36    I am satisfied that the Authority’s failure in this regard was material. That is, had the Authority engaged in an active intellectual process or taken a careful, fair and reasonable approach to the credibility of the Arrest Warrant, the Authority could realistically have reached a different decision as to s 473DD and as to the first appellant’s claim overall. The Arrest Warrant substantiated a central element of his claim; that he had twice illegally departed Sri Lanka and has an outstanding arrest warrant for failure to attend court arising from his first illegal departure, which increased the chance that he would face harsh punishment by the Sri Lankan authorities on return. The Authority’s error was jurisdictional, and the primary judge erred by failing to so find.

The Authority’s consideration of s 473DD(a) - whether exceptional circumstances

37    Having found that the Authority fell into jurisdictional error in its approach to subs (b)(ii) it is unnecessary to decide whether it also erred in failing to consider whether there were “exceptional circumstances” for it to consider the Arrest Warrant under subs (a). It is though worth noting that there is a way in which the Authority’s failure to consider whether exceptional circumstances existed under subs (a) may have played into its failure to give proper consideration to whether the Arrest Warrant was credible information under subs (b)(ii).

38    The Minister argues that there was no requirement for the Authority to consider whether exceptional circumstances existed, it having found that it was not satisfied that the requirements of s 473DD(b)(i) or (ii) were met. He submits that the requirements of s 473DD(a) and (b) are cumulative such that the Authority is prohibited from considering new information unless it is satisfied of the matters in subs (a) and (b)(i) or (ii). Therefore the Authority does not fall into jurisdictional error merely by failing to consider s 473DD(a) when it only placed reliance on s 473DD(b).

39    The Minister’s submission in this regard can be accepted, but it does not conclude the issue. It is clear as a matter of statutory interpretation and having regard to the authorities that the requirements of s 473DD(a) and (b) are cumulative; that is, the Authority is prohibited from considering new information unless it is satisfied of the matters in subs (a) and (b)(i) or (ii): see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (Plaintiff M174/2016) at [31] (Gageler, Keane and Nettle JJ). However, as the Full Court explained in Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [67], [71] and [72] (McKerracher, Murphy and Davies JJ), the Minister’s contention that there is no requirement for the Authority to consider whether exceptional circumstances exist has a tendency to sidestep the real question. The requirements of subs (a) and (b) are cumulative but they may nevertheless overlap to some extent, such that consideration of the matters in subs (b) may be affected by consideration of whether there are exceptional circumstances under subs (a). Whether the Authority’s failure to consider subs (a) means that it did not give proper consideration to the requirements under subs (b)(i) or (ii) will depend on the facts of the case.

40    The Minister also submits that it is for the first appellant to demonstrate what the asserted exceptional circumstances under s 473DD(a) are and how this could affect the Authority’s consideration under s 473DD(b)(i) or (ii). He says that there were no exceptional circumstances for the Authority to consider in the present case; the Arrest Warrant was proffered to the Authority without comment, the Arrest Warrant had been referred to at the interview with the delegate but not provided at that time, the Authority considered that circumstance, and the Authority took into account its difficulties with the Arrest Warrant on its face.

41    Contrary to the Minister’s submissions, I consider there were exceptional circumstances to justify the Authority considering the Arrest Warrant. First, there is no basis for the Minister’s contention that the first appellant proffered the Arrest Warrant without comment. It was attached to the first appellant’s submission which said (without correction):

I have told Immigration the current journey to Australia in order to seek protection of Australia is my second illegal departure.

Please find enclosed herewith the Warrant of Arrest issued by OIC, Police evincing that I am being accused for attempting to leave Sri Lanka by boat.

There is evidence before the DIBP/IAA that an ethnic Tamil who, for a second time illegally flees Sri Lanka, would receive harsh and severe punishment. There is country information and or the Immigrants and Emigrants Act 2006 (Sri Lankan Act) before the DIBP that the country information/the Immigrants and Emigrants Act 2006 support that a failed Tamil asylum seeker on arrival will receive a harsh punishment for an second illegal departure (the Immigrants and Emigrants Act 2006). There is real chance I would suffer serious harm from the police or CID because of my exposure to interrogation techniques that include torture or cruel or inhuman or degrading treatment or punishment.

42    Second, what will amount to exceptional circumstances is incapable of exhaustive statement, and to be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered: Plaintiff M174/2016 at [30]. The first appellant submitted to the Authority that if returned to Sri Lanka he fears harsh and severe punishment because his departure from that country in November 2012 was his second illegal departure. Essentially he submitted that the Arrest Warrant, if true, is proof that he previously departed Sri Lanka illegally, that he was charged for that, and that a warrant was issued for his arrest. He contended that while it is usual for an asylum seeker returning to Sri Lanka to face a charge for illegally departing the country, if he is returned he will face two such charges as well as a charge for failing to attend court when required. The first appellant submits that this is an unusual circumstance, one that is not routinely or normally encountered, which constitutes “exceptional circumstances”. I agree.

43    It is not necessary to the decision in relation to subs (b)(ii) but in my view, had the Authority considered whether there were exceptional circumstances for considering the Arrest Warrant, that may have affected its approach to the question of whether the warrant was credible information. As I have said, the Authority gave only superficial attention to the credibility of the Arrest Warrant and had it understood the unusual circumstances and the centrality of the warrant to the first appellant’s claims it may have engaged in an appropriately active intellectual process and taken a careful, fair and reasonable approach to that issue.

THE FIFTH APPELLANT’S APPEAL

44    The fifth appellant’s appeal concerns whether the Authority erred by failing to understand her evidence that she was raped by SLA soldiers on three separate occasions, rather than on one, and in concluding from differences regarding the date of the alleged rape that her allegation was fabricated.

The factual and procedural background

45    The fifth appellant is a 29-year-old citizen of Sri Lanka and the wife of the first appellant. She illegally left Sri Lanka by boat in May 2013 and arrived in Australia in June 2013, along with her young daughter and members of her extended family. She too was therefore an “unauthorised maritime arrival” and thereby precluded from making a valid visa application until the Minister lifted the bar.

46    On or about 10 May 2017 the fifth appellant applied for a protection visa. In a statement accompanying her protection visa application the fifth appellant made a series of claims, only some of which are relevant to the appeal. Relevantly to the appeal, the fifth appellant claimed that, because of his involvement with the LTTE, her husband was of continuing interest to the SLA. She claimed that:

(a)    in 2009 her husband went to a friend’s birthday party. While he was away SLA soldiers came to their home in search of him. The soldiers said that they suspected that her husband was in the LTTE and they searched the house for weapons. After that she and her husband became fearful that the SLA might take and kill him and they decided that he should go to Batticaloa and hide for a period;

(b)    in October 2012 SLA soldiers again came to their home looking for her husband. They said they had evidence that he was in the LTTE and her husband decided to leave the country and seek refuge elsewhere;

(c)    after her husband left the country the SLA again came to her house looking for him. They were very angry when he was not there. She and her mother were at home at the time and the soldiers sexually abused and raped her; and

(d)    afterwards she realised that if she stayed in Sri Lanka any longer this could happen again and she decided to leave Sri Lanka. She believes that she goes back to Sri Lanka she will be harmed and the same thing will happen to her again.

47    On 29 August 2017 the delegate refused to grant the fifth appellant a protection visa. Her application was referred to the Authority along with her husband’s application.

The Authority’s decision

48    On 6 March 2018 the Authority affirmed the delegate’s decision to refuse to grant the fifth appellant a protection visa.

49    The Authority did not accept the fifth appellant’s claim to have been raped, largely because she had given inconsistent information about the date on which it occurred. At [23] of its decision the Authority said:

The applicants claim that the SLA maintained an interest in the applicant after he left the country. The first applicant states that after he left the SLA came looking for him and mistreated and raped his wife. The second applicant states that the SLA came searching for him after he left the country, she was at home with her mother. They sexually abused and raped her. She decided that if she stayed any longer this could happen again and decided to leave the country with her daughter. In the SHEV interview the second applicant claims that the SLA sexual abused and raped her in December 2012. She has given varying accounts of this claim. In the enhanced screening interview shortly after her arrival to Australia she was interviewed by a woman and did not mention this claim. In her arrival interview, again conducted by a woman, she does not mention this claim. In her SHEV application she states that she was at home with her mother in early 2013 and the army officers came and raped her, however, the evidence is that her mother had gone to Australia with her husband in 2012. In the SHEV interview she stated that 20 days after husband left she was raped by three army personnel at her brother in law’s house and that no one else was at home. She did not report the rape or seek any medical attention. She also stated that her daughter was about 1 month old when in fact she would have been 3 months old and she states that the army had been questioning her about her husband from November 2012 until she left in May 2013. I do not accept that the applicant was raped by army personnel. I consider that this claim was fabricated to enhance the second applicant’s claim for protection. I also consider that if the applicant was afraid of further abuse by the SLA she would not have waited over five months to leave the country. I prefer the applicant’s claim that she could not travel to Australia with her husband, son and mother as she had a two month old daughter and she left later with other family members in May 2013 when her daughter was over eight months old.

50    The Authority concluded (at [24]) that it did not accept that the fifth appellant was raped or subject to any personal harm apart from the fact that she lived in a conflict zone.

The application to the Federal Circuit Court

51    By an amended application filed on 22 June 2018 the appellants advanced 14 grounds of review to the Federal Circuit Court, but the only one relevant to the appeal is Ground 11, which was as follows:

IAA erred in not understanding the evidence given by the [fifth appellant] that the [fifth appellant] was assaulted and raped on three separate occasions, the IAA conflating the evidence and incorrectly concluding that the [fifth appellant] was not raped and the allegations were fabricated to enhance her claim for protection.

52    The primary judge dismissed Ground 11 and said (at [32]) that it was:

…directly contradicted by the statement in support of the applicant wife’s visa application which refers to one claimed rape. There is no evidence that the applicant wife claimed that she was raped on more than one occasion. Properly understood, Ground 11 appears to be directed to advancing a new explanation for the concerns the Authority identified at [23]. No reasonably arguable case of jurisdictional error is disclosed by this ground of review.

The appeal to this Court

53    On 3 August 2018 the fifth appellant applied to this Court for leave to appeal from the interlocutory judgment of the Federal Circuit Court, and the Court subsequently granted leave. The notice of appeal reiterates all of the grounds before the Federal Circuit Court, but the fifth appellant only relies on Ground 11.

Determination

54    The fifth appellant contends that the apparent inconsistencies in her account are explicable as a result of the Authority’s misunderstanding of her evidence. In written submissions she outlined the evidence she gave in her SHEV application and interview as follows:

(a)    she stated in her SHEV interview that her daughter was born on 20 September 2012 and that she was “misused” by three SLA soldiers about one month after her daughter was born, placing this event in around October or November 2012;

(b)    this event was preceded by an earlier visit, 10-15 days after her husband left Sri Lanka, when “they came to me asking about my husband” and threatened her;

(c)    she and her mother were at home during one assault;

(d)    she was at home alone during (another) assault;

(e)    she gave evidence (which she says does not appear to have been fully transcribed in the delegate’s decision) that the dates of the alleged sexual assault ranged between October 2012, November 2012 and May 2013; and

(f)    the fifth appellant’s mother left by boat in November 2012 with her husband.

55    In response to the inconsistencies in her evidence identified by the Authority she argues that, on a correct understanding, her evidence was that she was assaulted or raped three times: once after her husband had left and a month after her child was born (October/November 2012) when she was home alone; again when she was at home with her mother (placing that event before her mother left Sri Lanka in November 2012) and a third time after her husband and mother had left and she was home alone, possibly in May 2013.

56    The fifth appellant contends that the Authority merely parroted the delegate’s misconceived interpretation of her evidence, and failed to ask “what if I am wrong?”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-3 (Kirby J). She submits that there was clear evidence that she claimed to have suffered more than one rape and all that was necessary was for the Authority to properly consider the evidence. She argues that the Authority did not take a reasonable approach to making the adverse credibility findings it did and thereby fell into jurisdictional error.

57    For the reasons I explain, I do not accept these submissions.

58    The question is whether the Authority’s credibility findings were irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 at 20; [2004] HCA 32 at [37]-[38]. In my view the Authority’s findings were plainly open on the evidence.

59    First, and most importantly, the fifth appellant’s assertion that she claimed to have been raped on three separate occasions rather than once contradicts a clear statement in her visa application. In response to the question “why did you leave [Sri Lanka]?” the fifth appellant stated: “[a]fter my husband left for Australia, police and [sic] came and asked for my husband and raped me. This happened once.”

60    The Court was taken to nothing elsewhere in the materials to show that the fifth appellant at any stage expressly said that there was more than one incident of sexual assault. The highest it could be put is that the different details emerging from the fifth appellant’s visa application and interview were arguably consistent with there being more than one occasion. That may be so but, given the fifth appellant’s express statement that she was raped on only one occasion, it was open to the Authority to conclude that she had given inconsistent dates for the same event rather than her having suffered three separate rapes.

61    Second, the delegate’s decision records that the inconsistencies in dates and details were put to the fifth appellant, together with the fact that she had made no mention of being sexually assaulted or raped in her entry interview. The fifth appellant responded by saying “when we came we had a fear that we will be returned and we were afraid to disclose and that we will be returned so my husband told me not to disclose it”. It was open to conclude that if part of the reason for the discrepancies was that the fifth appellant was referring to multiple instances of sexual assault or rape, she would have said so at that point. It is noteworthy too that the fifth appellant referred to the alleged rape and sexual assault in the singular, reinforcing her express statement that there was only one incident.

62    The inconsistencies in the fifth appellant’s account in relation to the claimed rape provide a logical and probative basis on which the Authority could reach the view that it did not believe her claim. While a different decision-maker may have reached a different view as to the significance of the inconsistencies and variations in her account, the Authority’s decision is not irrational, illogical or unreasonable in the sense required to establish jurisdictional error.

63    I can discern no error in the primary judge’s decision on Ground 11 and it is appropriate to dismiss this ground of appeal.

THE SECOND, THIRD AND FOURTH APPELLANTS’ APPEALS

64    The second, third and fourth appellants’ protection visa applications are made on the basis that they are members of the same family unit as the first and fifth appellants; they do not assert an independent basis for an entitlement to protection. Having regard to the fact that the appeal by the first appellant is upheld and the appeal by the fifth appellant is dismissed I will hear submissions from the parties as to the appropriate disposition of the children’s appeals.

COSTS

65    The first and fifth appellants’ appeals are made in the same proceeding and heard in the same hearing. The first appellant was successful and the fifth appellant was not. I am not aware of any reason why costs should not follow the event, but in all likelihood any costs order in favour of the first appellant in his appeal will be cancelled out by a costs order in favour of the Minister in the fifth appellant’s appeal. My present view is that the costs order made in the Federal Circuit Court against the first and fifth appellants should be set aside and there should be no order as to costs in the appeal. I have made orders reflecting that view but I grant liberty to apply in relation to costs, within seven days.

Associate:

Dated:    21 March 2019

SCHEDULE OF PARTIES